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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition
- **Published:** January 1, 1980
- **Citation:** 449 U.S. 890

## Text

upreme Court, U.&
: FILED

} MAY 22 1980

Le ui : RODAK, R., ~ EE

a

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

aa
oo

;

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

0

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

10

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

12

15

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

iv

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.

2

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.

3

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,

4

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.

5

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)

6

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.

7

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.

9

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.

Pd

10

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:

11

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).

12

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

13

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-

:

14

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?”

15

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

16

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.”

|

17

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).

18

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.

19

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.

>

20

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

21

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

22

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.

23

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

>a
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.

aa

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.

I.

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

A-10
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

3

4

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). ’

A-12
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.

A-19
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);

10

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.

A-22
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

V.

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.

Fy

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,

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385006_2428%3A1. Public record. Not legal advice.