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

IN THE

Supreme Court of the United States

OCTOBER TERM, 1979

No. 79-1857

Aucoa SteamMsHie Company, Inc.,

Petitioner,

- against -

M/V Norvic Recent, her boilers, tackle, machinery and

other appurtenances in rem and Norcross Surppine Co.,

Inc., as her owner in personam,

Respondent.

ON PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE SECOND CIRCUIT

RESPONDENT’S BRIEF IN OPPOSITION

Houturs M. Waker, Jr.

40 Wall Street

New York, New York 10005

(212) 344-4700

Attorney for Respondent

JosePH T. STEARNS

Vera EK. WEINBERG

Of Counsel

TABLE OF CONTENTS

PAGE

QUESTIONS PRESENTED ..020u......2......c.-cecccscsce-- 1

oe ine Fi gg) hy Sh canoe ene 2

ak eens Ce ee COM nn eee 2

as SIIIIE ees Alenthcaniesceinsnrsarcenanensics 2

b. Litigation History . 3

REASONS FOR DENYING THE WRIT .................... 4

Pornt I—The Gilbert Criteria Give Due Considera-

tion To Plaintiff’s Expressed Preference Of Forum

And Are Broad Enough To Insure A Just Result

In All Forum Non Conveniens Cases Irrespective

Of The Citizenship Of The Parties .. 8

(A) The American Citizenship Of The Plaintiff

Does Not Justify Creating A Special Rule Of

Forum Non Conventens .............-..-.-0-eceeeeeseeseesee 12

(B) Significant Policy Considerations Support

Adherence To A Uniform Standard For

Determination Of Forum Non Conveniens

RENEE SEARS a Re TE 18

Pornt I]—The District Court Has Discretion To Dis-

miss Under The Doctrine Of Forum Non Conven-

tens Notwithstanding Any Prospect Of A Lesser

Recovery By Plaintiff In The Alternative Forum... 19

TENN, sctachtheknseeectesisenstticassigcastephinhngtnnseseninenctengiitgiee 24

ii

TABLE OF CASES

PAGE

Abouchalache v. Hilton Int'l Co., 464 F. Supp. 94

IR I tlic a 10

Black Diamond 8.8. Corp. v. Robert Stewart & Sons,

Ltd., 336 U.S. 386 (1949) 22

Burt v. Isthmus Development Co., 218 F.2d 353 (5th

Cir.), cert. denied, 349 U.S. 922 ET 15

Canada Malting Co. v. Paterson Steamships, Ltd., 28

U.S. 413 (1932) ... 20, 21

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

Cir. 1978) 10, 13, 18, 19

Fitzgerald _v. Texaco, Inc., 521 F.2d 448 (2nd Cir.

1975), cert. dented, 423 U.S. 1052 (1976) —..... 10, 19, 20

Founding Church of Scientology of Washington, D.C.

v. Verlag, et al., 536 F.2d 429 (D.C. Cir. 1976) _...... 15

Frangiskatos v. Konkar Maritime Enterprises, S.A.,

471 F.2d 714, 715 (2d Cir. 1972) (per curiam) ........ 10

Gulf Oil Corp. v. Gilbert, 330 U.S. 501 (1947) 1, 4, 5,

6, 7, 8, 9, 10, 11, 12, 14, 16, 17, 18, 20

Kloeckner Reederei Und Kohlenhandel G.M.BH. v.

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

(2d Cir. 1954), appeal dismissed, 348 U.S. 801

(1954) .21, 22

Koster v. Lumbermen’s Mutual parents Co., 330 U.S.

518, 524 (1947) 11

Mizokami Bros. of Arizona, Inc. v. Baychem Corp.,

556 F.2d 975 (9th Cir. 1977) (per curiam), cert.

denied, 434 U.S. 1035 (1978) “ 10, 13

Mobil Tankers Company, S.A. v. Mene Grande Oil Co.,

363 F.2d 611 (3d Cir.), cert. denied, 385 U.S. 945

(1966) 14, 15

Mohr v. Allen, 407 F. Supp. 483 (S.D.N.Y. 1976) _.... 17

M/S Bremen v. Zapata Off-Shore Co., 407 U.S. 1

(1972) 18, 20

iit

PAGE

Oceanic Steam Navigation Co. v. Mellor, 233 U.S.

REINER GH RTLE SRO EON ae 22

Paper Operations Consultants Int’l, Lid. v. S.S. Hong

Kong Amber, 513 F.2d 667, 671 (9th Cir. 1975) ...... 10

Schertenleib v. Traum, 589 F.2d 1156, 1164 (2d Cir.

IIE © dhs cacectininan tapacesbeieniadvebalaieslibebtioe ncinietacaniphinnaniabbiigeasiniiies 10, 22

Swift & Co. Packers v. ‘Pidiaiinie Colombiana del

Caribe, S.A., 339 U.S. 684, 697 (1950) ......0.00....2...... 12

Texaco Trinidad, Inc. v. Astro Exito Navegacion S.A.,

Panama, 437 F. Supp. 331 (S.D.N.Y. 1977) ........... 10, 17

United States v. Reliable Transfer Co., 421 U.S. 397,

404 (1975) - 20

Van Dusen v. Barrack, 376 U.S. 612 (1964) ................ 21, 22

Vanity Fair Mills v. T. Eaton Co., 234 F.2d 633, 645-46

(2d Cir.), cert. denied, 352 U.S. 913 (1956) ............. 10, 14

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

Be TE saetalichiahecactchtinnioeicecthscncpcicbihliantiniesnsteajestenlintsionenenecegiin 10

TABLE OF AUTHORITIES

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

States-Hungary, T.I.A.S. No. 8967 .........0.2..00..........- 18

Treaty of Friendship, Establishment and Navigetion,

Feb. 21, 1961, United States-Belgium, 14 U.S.T.

BO I ini cibces ii cisniclbihieiciasolesainsetieseisdinieeasibanticestintanicwonene 18

Treaty on Friendship, Commerce and Navigation,

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

908, 912 piciieie Daisies ccaneh aailigiaaais baa tai 18

STATUTES

i Ngo Oy ES. SS eneeeeeeee neem aeenren teroeeeoran 2

a WP ioc cetdenges Saineieevncanceinncbenevsseinetnnne 10, 21, 22

I al ieeatlcbaemticdoend 2, 21

RR Te ID iscsi 5

iv

MISCELLANEOUS

PAGE

Bickel, The Doctrine of Forum Non Conveniens As

Applied In The Federal Courts In Matters of

Admiralty, 35 Cornell L.Q. 12 (1949) 2.00.2. 11

Braucher, The Inconvenient Federal Forum, 60

BEV DATIOY., Fatly, Ge CRIED esiecsesescstcnnsnscncescnensnnenicnncn 10, 11

Owen, The Origins and Developments of Marine

Collision Law, 51 Tulane L. Rev. 759, 806-07 (1977) 10

Restatement (Second) of Conflict of Laws § 84, Com-

I Fe IRR elas tasincichiareeintcdinantmensdenceaeinhanaihecetins 9

RESTATEMENT (SeconD) or Conruict or Laws § 84,

a 9

Wilson, Access-To-Courts Provisions im U.S. Com-.

mercial Treaties, 47 Am. J. Int’l Law, 20, 45

SI astesetcactanieiooccsceiioniiess scetbedaasiocagshibeesadeveadnessesanbetiiesoninsece 18

20 Harv. Int’] L.J., 404, 411 n.40 (1979) -W0 ee. 18

IN THE

Supreme Cot of the United States

OCTOBER TERM, 1979

No. 79-1857

Aucoa SteamsHip Company, Inc.,

Petitioner,

- against -

M/V Norpic Recent, her boilers, tackle, machinery and

other appurtenances in rem and Norcross Surprine Co.,

Inc., as her owner in personam,

Respondent.

ESE

BRIEF IN OPPOSITION TO THE PETITION OF ALCOA

STEAMSHIP CO., INC. FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE SECOND

CIRCUIT

Respondent respectfully requests that this Court deny

the petition for writ of certiorari to review the en banc

decision of the United States Court of Appeals for the

Second Circuit dated February 25, 1980, vacating the judg-

ment and opinion of the panel on rehearing dated January

10, 1979. The panel on rehearing had reversed the judg-

ment 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, conditionally dismissing this ad-

miralty suit under the doctrine of forum non conveniens.

Questions Presented

1. Does the standard established by this Court in Gulf

Oil Corp. v. Gilbert, 330 U.S. 501 (1947) for determining

2

motions to dismiss on forum non conveniens grounds apply

to all litigants?

2. Did the district court err in granting the motion to

dismiss on forwm non conveniens grounds knowing that

petitioner, if successful in the alternative forum, would

recover less than the $3.5 million maximum recovery from

any limitation fund available in the United States?

Statutes Involved

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

under” and Admiralty Clauses) of the Constitution of the

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

Shipowners’ Liability Statutes), which are printed in Peti-

tion, Appendix A.

Statement of the Case

a. The Facts.

This action to recover for property damages arises from

the allision on January 2, 1977 of the M/V Norpic Rer-

GENT (the vessel) with a transfer station ore pier owned

and operated by petitioner, Aleoa Steamship Company, Ine.

(Alcoa) and located in Port Tembladora, Trinidad, West

Indies. Petitioner has conducted business at the ore transfer

terminal in Trinidad for over 25 years. The vessel was

owned by respondent Norcross Shipping Co., Ine. (Nor-

cross) a Liberian corporation, and was manned by Italian

officers and crew.

On the day of the accident, the M/V Norpic Recent

was invited by the Trinidadian Pilots’ Association to pro-

ceed to a point one-half to one mile from the pier, and was

also advised that a pilot would be waiting. No pilot was

there when the vessel arrived. Shortly before entering this

_zone of invitation, according to the captain, the vessel en-

3

countered a current driving against her starboard side; the

pilot assigned to handle the vessel, in his statement, charac-

terized these local phenomena as “surface and subsurface

currents.” The captain tried to maneuver without success,

and the vessel struck the pier.

At the time of the allision, the vessel’s owner, respondent

Norcross had chartered the vessel to Anglo-Nordic Ship-

ping Co., Ltd. which, in turn, had chartered it to petitioner

Aleoa. Since no dispute arose under either of the charter-

parties as a result of the accident of January 2, 1977, the

language and clauses of the contracts are irrelevant to the

issue at bar.

b. Litigation History

Petitioner commenced the instant admiralty action in the

United States District Court for the Southern District of

New York to recover for property damage to its pier

in Trinidad, allegedly resulting from the negligence of the

vessel and its captain. Petitioner named as defendants

the M/V Nororc Recent and its owner Norcross, and served

process on its agent in New York.

Shortly after the accident, respondent commenced a

limitation proceeding in Trinidad which establishes its pres-

ence there for purposes of suit by petitioner. Additionally,

respondent has given a letter of guarantee to petitioner

that a Trinidadian judgment would be satisfied and agreed

that this could be made a condition for the dismissal of

the action, as the district court subsequently so ordered.

On February 4, 1977 respondent moved to dismiss the

action under the doctrine of forum non conveniens. After

taking the motion to dismiss on submission based on the

pleadings, affidavits, briefs and letters of the parties, the

district court conditionally granted the motion on J anuary

17, 1978.

4

On August 31, 1978 the United States Court of Appeals

for the Second Circuit affirmed the district court in a 2

to 1 opinion. Upon rehearing, the same panel—with one

judge changing his vote—withdrew the original panel’s

affirmance and reversed the district court. Upon rehearing

en banc directed to the second panel decision, the United

States Court of Appeals for the Second Circuit vacated the

judgment and opinion of the panel on rehearing and

affirmed by a 7 to 2 vote! the judgment of the district court

in an opinion dated February 25, 1980.

Reason for Denying the Writ

The Court of Appeals for the Second Cireuit en banc

properly affirmed the district court’s sound exercise of dis-

cretion in dismissing the case after applying the test estab-

lished by this court in Gulf Oil Corp. v. Gilbert, 330

U.S. 501 (1947), for determining motions to dismiss

on grounds of forum non conveniens. In so deciding the

en banc court reaffirmed the applicability of the Gilbert

criteria, which has been established law for more than three

decades. After finding ample justification for the district

court’s discretionary dismissal under the Gilbert test, the

en banc majority rejected the claim of petitioner that in the

circumstances of this case a different standard ought apply.

It was unsucessfully urged that because petitioner, part of

a multinational business enterprise is incorporated in New

York and, hence, is an American citizen, its choice of forum

should not be disturbed, despite the fact that this litigation,

which involved claim of damage to no doubt well insured

property, arises from a perhaps ultimately inevitable acci-

dent occurring in the 25 year continuous course of operation

1. Judge Gurfein, who was a member of the en banc court,

unfortunately 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 the en banc court's opinion

prior to his death. (Petition A-3).

5

by this American corporation of an “offshore” facility.

There is before this court no issue of the district court’s

abuse of the discretion accorded it under Gilbert. There is,

further, no serious argument made by petitioner that the

Southern District of New York is a convenient forum for

this purely local matter, or that to a degree or other re-

spondent will not be disadvantaged by a trial in petitioner’s

chosen forum. Having, on the basis of the record in the

district court, lost as it were “fair and square” under the

Gilbert criteria, this disappointed petitioner plunges on,

urging this court to forge what is unquestionably a new

rule of law whereby an American plaintiff will be all but

immune from a motion to dismiss on grounds of forum non

conveniens. That is to say, petitioner urges that a degree

of injustice should properly be inflicted upon a defendant,

or that, at minimum, he should be required to bear all

manner of inconvenience, and be no less than heavily bur-

dened if not oppressed, should that result happen to suit

the interest of an American plaintiff. Thus, according to

petitioner, no matter how local the controversy or remote

from the American forum the defendant, or how perma-

nently international the nature of the enterprise, and apart

from considerations of convenience or concern for the

equality of a foreign defendant’s rights, an American plain-

tiff in cases of this sort should be allowed a virtually un-

limited right to embrace, when advantageous, a part of the

laws of the United States, 46 U.S.C. §183(a), regarding

maritime limitations of liability. And if this court cannot,

or will not, adopt this parochial and discriminatory view,

petitioiner then implores the Court to hold dismissal on

forum non conveniens grounds inappropriate when re-

covery in the alternative forum is markedly less than that

provided by the forum chosen, in order, of course, to

achieve precisely that more favorable result.

Surely petitioner would have the court ignore the under-

lying facts: (1) when the ore transfer station was con-

6

structed more than one quarter of a century ago, in an

apparent expression of a deliberate choice by petitioner

to forego the “advantages” of American law with respect,

for example, to taxes and labor, Alcoa knew, or should have

known, that if the pier were struck and damaged by a vessel

the owner could, under the law of Trinidad, raise as a de-

fense a limitation of liability statute less favorable on cer-

tain facts than that provided by the laws of the United

States. Alcoa was at the time of the decision to shelter this

aspect of its far-flung business operations under the laws

of Trinidad, aware that limitation statutes are arbitrary,

and hence never nfair, and are, purely and simply, expres-

sions of a public policy to which this petitioner was no doubt

all too exquisitely attuned with respect to other aspects of

its Trinidad operation. This multinational corporation

must surely have considered, before embarking on this off-

shore profit maximizing enterprise, the possibility of litiga-

tion of this kind in Trinidad, along with such other factors

as the apparent advantage gained by the, perhaps, more

favorable tax and labor laws.

The exquisitely drawn criteria set forth in the landmark

ease of Gulf Oil v. Gilbert, indeed, mark it as a case for all

plaintiffs whose choice of forum is challenged. Save for

differing amounts of recovery, which if considered would

render the doctrine of forum non conveniens impotent, all

of the arguments raised in this petition and possibly all

previous petitions are met, including the question of

whether defendant was vexed and harassed by plaintiff’s

forum selection. A plaintiif can demand no more than that

the judge fairly consider all the factors in exercising his

discretion.

We can do no better now than to turn to the language of

the district court, which gave rise to the controversy before

this Court:

This Court is persuaded that the lack of a sub-

stantial nexus between this controversy and the

7

Southern District of New York combined with the

inconvenience and possible prejudice to the defend-

ant resulting from retention of jurisdiction here—

which substantially outweigh any inconvenience

plaintiff may suffer—renders this an inappropriate

forum; an evaluation of the contentions of the parties

compels the conclusion that the litigation of this

case can be conducted most expeditously and inex-

pensively in Trinidad.

Nor does plaintiff’s asserted interest in the con-

venience of its expert witnesses weigh heavily, since

they will have to travel some distance to trial

regardless of its location. This is also true, of

course, with respect to witnesses from the crew of

the M/V Nordic Regent. On the whole, however,

the availability and convenience of the witnesses

militates most strongly toward dismissal in this

case. The dock workers, pilot personnel and repair

witnesses are concededly residents of Trinidad. As

recognized by this Court in Gulf Oil v. Gilibert,

supra at 511, 67 S.Ct. at 844,

[T]Jo fix the place of trial at a point where liti-

gants cannot compel personal attendance and may

be foreed to try their cases on deposition, is to

create a condition not satisfactory to court, jury

or most litigants. Nor is it necessarily cured by

the statements of plaintiff’s counsel that he will see

to getting many of the witnesses to the trial * * *.

Most importantly, the inability to implead the

pilot association here, which is not challenged by

plaintiff, may seriously prejudice the defendant.

The inability to implead other parties directly in-

volved has been recognized as a factor to be weighed

against retention of jurisdiction, ...

These factors substantially outweigh plaintiff's

choice of forum—even though plaintiff correctly

argues that courts are more reluctant to deprive a

plaintiff of that choice where dismissal would force

8

an American citizen to seek redress in a foreign

eourt. An American citizen does not, however, en-

joy an absolute right to sue in an American court.

[Petition A-76-78 ]

This Court therefore should deny the petition for writ

of certiorari, and leave undisturbed the consistent line of

decisions by the lower courts which reflect the appropri-

ateness of the Gilbert standard.

POINT I

THE GILBERT CRITERIA GIVE DUE CONSIDERATION TO

PLAINTIFF’S EXPRESSED PREFERENCE OF FORUM AND

ARE BROAD ENOUGH TO INSURE A JUST RESULT IN ALL

FORUM NON CONVENIENS CASES IRRESPECTIVE OF THE

CITIZENSHIP OF THE PARTIES.

In Gulf Ou Corp. v. Gilbert, 330 U.S. 501, 507 (1947),

this Court approved the inherent authority of federal courts

to decline to exercise jurisdiction under the doctrine of

forum non conveniens where the litigation could more ap-

propriately proceed in a foreign tribunal. In so doing,

this Court recognized that an alternative forum can, at

times, maximize the ends of justice and better serve the

convenience of all concerned by ensuring that the contro-

versy proceeds in the forum that has the best and most con-

vient access to the sources of proof.

The factors enumerated by Mr, Justice Jackson in writ-

ing for the majority in Gilbert to be considered by courts

in their determination can be divided into two categories;

the interests of the litigants and the interests of the public.

The interests of the litigants include the relative ease of

access to sources of proof; the availability of compulsory

process for the attendance of unwilling witnesses, and the

cost of obtaining attendance of willing witnesses; the pos-

sibility of a view of the premises, if a view would be appro-

9

priate to the action; questions as to the enforeability of a

judgment ; relative advantages and obstacles to a fair trial;

and all other practical problems that make trial of a case

easy, expeditious and inexpensive. The interests of the

publie include, administrative difficulties stemming from

court congestion; a local interest in having localized con-

troversies decided at home; and avoidance of unnecessary

problems in conflicts of laws and in law foreign to the

forum.?

Regarding plaintiff's choice of forum, the majority

stated:

It is often said that the plaintiff may not, by choice

of an inconvenient forum “vex,” “harass,” or “op-

press” the defendant by inflicting upon him expense

or trouble not necessary 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. Jd, at 508.

Of necessity, application of the Gilbert standard leaves a

great deal to the discretion of the trial courts who must

weigh the facts and circumstances of each ease in balancing

the convenience of the parties, Restatement (Second) of

Conflicts of Laws § 84, Comment b (1971), a fact recognized

and approved by this court in Gilbert:

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 plaintiff

resorts, and experience has not shown a judicial

tendency to renounce one’s own jurisdiction so

strong as to result in many abuses. 330 U.S. at 508

(footnote omitted). [Petition A-27].

By declining to define an “all purpose rule” and instead,

setting forth the relevant factors to be taken into account

2. Jd. at 507-508. The Court is also respectfully. referred to the

opinion of the district court in the Memorandum and Order of Judge

Conner, January 17, 1978 (Petition A-74).

10

by the trial court in exercising its discretion, factors which

may vary from case to case but are nevertheless always

present be it 1947 or 1980, this Court ensured the continu-

ing vitality of the Gilbert standard; a standard which the

federal courts have reaffirmed repeatedly.’

The reason for the longevity of the Gilbert standard and

its subsequent expansive application by the state courts,

most notably in New York,‘ as well as the reliance placed

upon it by Congress in codifying the doctrine of forwm non

conveniens in 28 U.S.C. $1404(a), the transfer statute, is

readily apparent; it requires, and indeed, “nicely blends”,

considerations of harassment by the parties with a balanc-

ing of conveniences. Braucher, The Inconvenient Federal

Forum, 60 Harv. L. Rev. 908, 923 (1947). In so doing the

Gilbert standard fulfills the principle function of the doc-

trine of forum non conveniens, the avoidance of forum shop-

ping.’ As this Court realistically recognized in a comment

3. The Court is respectfully referred to the opinion en banc of

the Second Circuit (Petition A-28). See also, Farmanfarmaian v.

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

589 F.2d 1156, 1164 (2d Cir. 1978); Mizokami Bros. of Arizona,

Inc. v. Baychem Corp., 556 F.2d 975 (9th Cir. 1977) (per curiam),

cert. denied, 434 U.S. 1035 (1978); Fitzgerald v. Texaco, Inc., 521

F.2d 448 (2d Cir. 1975), cert, denied, 423 U.S. 1052 (1976);

Paper Operations Consultants [nt’l, Ltd. v. S.S. Hong Kong Amber,

513 F.2d 667, 671 (9th Cir. 1975); Frangiskatos vy. Konkar Mari-

time Enterprises, §.A., 471 F.2d 714, 715 (2d Cir. 1972) (per

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

1967); Vanity Fair Mills v. T. Eaton Co., 234 F.2d 633, 645-46

(2d Cir.) , cert. denied, 352 U.S. 913 (1956); Accord, Abouchalache

v. ‘Hilton Int'l Co., 464 F. Supp. 94 (S.D.N.Y. 1978); Texaco

Trinidad, Inc. v. Astro Exito Navegacion §.A., Panama, 437 F.

Supp. 331 (S.D.N.Y. 1977).

4. For a comprehensive discussion of the evolution of the forum

non conveniens doctrine, see en banc opinion beginning on page

A-18 of the Petition.

5. The authority of United States federal courts to so decline

jurisdiction has tended in the past to minimize the effect of forum-

shopping generated by such international disparities in maritime law

as those raised in the instant case. See generally Owen, The Origins

and Development of Marine Collision Law, 51 Tulane L. Rev. 759,

806-07 (1977). Moreover, the doctrine of forum non conveniens

11

particularly apposite to the instant case, “a plaintiff some-

times is under temptation to resort to a strategy of forcing

the trial at the most inconvenient place for an adversary,

even at some inconvenience to himself.” Gilbert, 330 U.S.

at 507.

But for the suggestion of petitioner in the instant case

and the dissenting opinion of Judge Van Graafeiland in the

en banc opinion of the Second Circuit that Koster v. Lum-

bermen’s Mutual Casualty Co., 330 U.S. 518, 524 (1947)

states the rule, no alternative test or standard has been

advanced for resolving forum non conveniens determina-

tions. Moreover, respondent respectfully submits that

Koster is but a pragmatic application of the Gilbert stand-

ard; not an exception to it.®

Indeed, petitioner seeks to disguise its real purpose by

characterizing the result, and justifying need for review by

has been applied most flexibly by the federal courts in admiralty

cases. Bickel, The Doctrine of Forum Non Conveniens As Applied

In The Federal Courts In Matters Of Admiralty, 35 Cornell L.Q. 12

(1949); Braucher, supra, at 920-921.

6. In Koster, decided on the same day as Gilbert and in a

majority opinion written by the same judge, Mr. Justice Jackson,

this Court affirmed the dismissal of a derivative action commenced

in the Eastern District of New York by a New York plaintiff against

Illinois defendants on grounds of forum non conveniens. In so do-

ing, this Court observed:

[Plaintiff should not be deprived of the presumed advantages

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 plaintiff's

convenience, which may be shown to be slight or nonexistent,

or (2) make trial in the chosen forum inappiopriate because

of considerations affecting the court’s own administrative and

legal problems. /d. at 524.

The factors weighed in Koster are precisely those announced in Gil-

bert which reflect the court’s public interests concerns and the pri-

vate interests of the parties. Moreover this Court in Koster stated

“lcorporate citizenship] might be entitled to little consideration

under the doctrine of forum non conveniens, which resists formaliza-

tion and looks to the realities that make for doing justice.” Id. at

528.

12

the Court, in terms of a pendulum swung too far. But the

Gilbert criteria, by design, keep all points in range of any

just pendulum swing, requiring only a proper exercise by

the district court of informed discretion. What petitioner

seeks is not restoration of an appropriate flexibility but a

return to rigidity; a result where there is no pendulum

swing, no comparison or weighing of the objectives sought

to be achieved by the forwm non conveniens doctrine, but

a rule of law favoring an American citizen’s forum choice

at a cost amounting to abandonment of the concept.

(A) The American Citizenship Of The Plaintiff Does Not

Justify Creating A Special Rule Of Forum Non Conveniens.’

Neither this Court nor any federal court of appeals has

held that a special rule of forum non conveniens other than

Gilbert governs where, as here, the action is brought by an

American citizen and there is an alternative forum abroad.

In Swift & Co. Packers v. Compania Colombiana del

Caribe, S.A., 339 U.S. 684, 697 ( 1950), this Court expressly

refused to decide the question whether United States admir-

alty courts may decline jurisdiction over libels brought by

United States citizens. Writing for a unanimous Court,

Mr. Justice Frankfurter suggested, however, that such dis-

missal on forum non conveniens grounds in favor of litiga-

tion in a foreign forum would be proper if conditioned on

an assurance that the respondent would appear in the alter-

native foreign forum and provide appropriate security. In

the instant case, the dismissal was so conditioned and there

is no dispute with respect to the conditions.

More significantly, in the two most recent circuit court

cases dealing with this issue, the Second and Ninth cireuits

have applied the Gilbert standard in reviewing lower court

dismissals on grounds of forum non conveniens where, as

here, the plaintiff was an American citizen or one entitled

7. See the opinion en banc of the Second Circuit (Petition A-31).

13

to the rights of an American citizen. Farmanfarmian v.

Gulf Oil Corp., 588 F.2d 880 (2d Cir. 1978) ; Mizokami Bros.

of Arizona, Inc. v. Baychem Corp., 556 F.2d 975 (9th Cir.

1977) (per curiam), cert. denied, 434 U.S. 1035 (1978).

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

Cir. 1978), the Second Circuit affirmed the district court’s

dismissal of an action by an Iranian citizen, who under @

bi-lateral treaty between the United States and Iran had

“access to [this] country’s courts on terms no less favorable

than those applicable to nationals of the court’s country,”

id. at 882, citing 8 United States Treaties and Other Interna-

tional Agreements 900, 902-03 (1957). In that case, the

plaintiff commenced an action in the Southern District of

New York against eleven American companies for breach

of contract and tortious interference with contract rights.

Recognizing that the district court “applied the same forum

non conveniens standards as would be applied were the

plaintiff an American citizen,” id., the court unanimously

affirmed the dismissal in favor of litigation in the alterna-

tive foreign forum. <A writ of certiorari was not sought.

Similarly, in Mizokami Bros. of Arizona, Inc. v. Baychem

Corp., 556 F.2d 975 (9th Cir. 1977) (per curiam), cert.

denied, 434 U.S. 1035 (1978), the Ninth Circuit upheld the

lower court’s dismissal of an action by an American plain-

tiff in favor of litigation in Mexican courts. There, a United

States importer of Mexican produce sued a German corpo-

ration and its Mexican and American subsidiaries in federal

district court for the District of Arizona to recover for loss

arising from excessive chemical contamination to a produce

shipment. Approving the district court’s exercise of dis-

cretion under the Gilbert standard, the court affirmed the

dismissal under the doctrine of forwm non conveniens. Tn

so deciding, the Ninth Circuit concluded:

The plaintiff falls back on-its United States citizen-

ship as the sole and only basis for suing these de-

fendants in a court of the United States. This is

14

not enough. In an era of increasing international

commerce, parties who choose to engage in interna-

tional transactions should know that when their for-

eign operations lead to litigation they cannot expect

always to bring their foreign opponents into a United

States forum when every reasonable consideration

leads to the conclusion that the site of the litigation

should be elsewhere. Jd. at 978 (emphasis added).

While courts have expressed a “reluctance”, see, e.g.,

Vanity Fair Mills v. T. Eaton Co., 234 F.2d 633, 645 (2d

Cir.), cert. denied, 352 U.S. 871 (1956), to dismiss an action

brought by an American plaintiff under the doctrine of

forum non conveniens, these courts have not adopted a

standard different from Gilbert; they have merely required

that the balancing of Gilbert factors strongly favor a more

appropriate, convenient and less prejudicial forum.

Any contention that the holding of the en banc court

below is inconsistent with decisions of the Third, Fifth,

and District of Columbia Circuits has no merit; each of the

eases relied upon by petitioner is factually distinguishable.

In Mobil Tankers Company, S.A. v. Mene Grande Oil Co.,

363 F.2d 611 (3d Cir.), cert. denied, 385 U.S. 945 (1966),

the Third Cireuit held improper the district court’s dis-

missal of an American libelant on forum non conveniens

grounds. In that case, as here, the court applied the Gilbert

criteria in determining the motion to dismiss. There, how-

ever, unlike the instant case, the court concluded that the

record was devoid of evidence that the retention of juris-

diction by the district court would seriously prejudice the

defendant. /d. at 614-15. Here, the district court expressly

concluded that:

The lack of a substantial nexus between this contro-

versy and the Southern District of New York com-

bined with the inconvenience and possible prejudice

to the defendant resulting from retention of jurisdic-

tion here—which substantially outweigh any incon-

venience plaintiff may suffer—renders this an

inappropriate forum. ... [Petition A-76].

15

Most importantly, the inability to implead the Pilot

Association here, which is not challenged by plaintiff,

may seriously prejudice the defendant. ... [ Petition

A-78] (emphasis added).

In Mobil Tankers, the relinquishment of jurisdiction would

have relegated the libelants to a foreign forum in which the

mode of trial, the lack of adequate pre-trial procedures, and

a limitation on the manner in which expert testimony can

be offered did not comport with American concepts of fair-

ness. Here; in contrast, the petition raises no such ques-

tion of fairness. [Petition A-29 n.16].

In Burt v. Isthmus Development Co., 218 F.2d 353 (5th

Cir.), cert. denied, 349 U.S. 922 (1955), the Fifth Circuit

held improper the dismissal of a contract action by a New

York plaintiff against a Texas corporation on a forum non

conveniens basis since any inconvenience to the defendant

was offset by factors other than the plaintiff’s citizenship.

Id. at 358. In so holding, the Fifth Cireuit concluded that

the defendant’s incorporation in the forum state, the com-

pounded disadvantage of inconvenience to the plaintiff, and

the personal presence in the forum by a witness heavily re-

lied upon by the defendant militated against dismissal. Jd.

None of these factors is present in the instant case.

Further, the Fifth Cireuit found unnecessary in that case

“flatly to hold that no discretion exists in any ... case

[brought by a resident citizen] to decline jurisdiction.” Jd.

at 357. Writing for the court, Judge Dawkins stated:

Experience has taught that such a holding may

prove unsound in extreme cases; and the Supreme

Court in the Swift case ... declined to pass upon a

similar point. We leave that question open. Id.

(citation omitted).

In Founding Church of Scientology of Washington, D.C.

v. Verlag, et al., 536 F.2d 429 (D.C. Cir. 1976), the Court

of Appeals for the District of Columbia reversed a dis-

16

missal of a libel action by a District of Columbia corpora-

tion against a New York corporation. The District of

Columbia Circuit held that the lower court abused its dis-

cretion under Gilbert in dismissing on forum non con-

veniens grounds based only upon a consideration of the

drawbacks of one forum and not on a weighing of the rela-

tive advantages of each forum. The court there found it

“of great significance” that, unlike the instant case, both

the plaintiff and the defendant were residents of the

United States and that the plaintiff sought damages for

alleged tortious conduct in the District of Columbia, i.e.,

the original forum. Jd, at 435. That case, unlike here, pre-

sented “important questions ... which will turn on evidence

collected in the United States on questions which may be

controlled by local law.” Jd. at 436 (citation omitted).

There, unlike the instant case, many of the witnesses whom

the plaintiff would be required to call were from the

United States. Jd.

In the instant case respondent respectfully submits that

the district court, in the sound exercise of its discretion,

properly applied the Gilbert criteria and did not err in

conditionally dismissing the action as determined by the

Second Circuit.

The facts of this case lead to the inescapable conclusion

that this controversy lacks any substantial nexus to the

Southern District of New York. Additionally, the respond-

ent would be seriously prejudiced by its inability to

implead here a party directly involved, the Trinidadian

Pilots’ Association, and by the absence here of compulsory

process over Trinidadian fact witnesses required to prop-

erly defend this action on the issue of liability and damages.

This possible serious prejudice combined with the incon-

venience to respondent resulting from retention of jurisdic-

tion, substantially outweigh any possible inconvenience to

petitioner that would result from litigation in a forum

where petitioner conducts business activities and with

17

which petitioner presumably is “not... unfamiliar.” [Peti-

tion A-79].

Applying the Gilbert standard, recently several other

judges in the Southern District of New York have dismissed

actions by American citizens or residents on grounds of

forum non conveniens in favor of litigation in a foreign

forum.

In Texaco Trinidad, Inc. v. Astro Exito Navegacion S.A.,

437 F. Supp. 331 (S.D.N.Y. 1977), an admiralty case, the

defendant’s ship damaged the plaintiff’s jetty while in the

process of mooring in Trinidad. After the plaintiff, a

United States corporation, sued the defendant, a Pana-

manian corporation, in the United States federal court, the

defendant moved to dismiss on grounds of forum non con-

venvens in favor of trial in Trinidad. In that case, as here,

the limitation of liability statute which likely would be

applied by a court in Trinidad favored the defendant.

There, as here, the plaintiff opposed the motion on the

basis of its United States citizenship by incorporation and

the unfavorable limitation law to which it would be subject

in the foreign forum. Dismissing the action, the court con-

cluded that the nature of the action was wholly local and

observed that the plaintiff’s United States citizenship by

incorporation was merely a factor to be considered, and

did not control “if the balance of factors tips heavily in

favor of defendants.” Jd. at 333-34.

Similarly, in Mohr v. Allen, 407 F. Supp. 483 (S.D.N.Y.

1976), plaintiff, an American citizen, sued on the basis of a

purported oral contract with a Mexican national to develop

hotel property in Mexico. The court noted that Mexico was

the clear locus of events and applied the Gilbert standard.

Notwithstanding the American citizenship of the plaintiff,

the court dismissed the action (conditionally) resting its

decision on forum non conveniens as an alternate ground.

(This Court is respectfully referred to the opinion en banc

of the Seeond Circuit [Petition A-24].

18

(B) Significant Policy Considerations Support Adherence to a

Uniform Standard For Determination Of Forum Non

Conveniens Motions.

The recent decision by the Court of Appeals for the

Second Circuit in Farmanfarmaian, 588 F.2d 880 (1978),

supports adherence to the uniform standard of Gilbert as a

matter of policy. The Treaties of Friendship, Commerce

and Navigation, and similar agreements, maintained be-

tween the United States and many foreign nations include

“no less favorable” treatment clauses like that found in the

treaty addressed in Farmanfarmaian. See, Wilson, Access-

to-Courts Provisions in U.S. Commercial Treaties, 47 Am.

J.Intl. Law, 20, 45 (1953) ; 20 Harv. Intl L. J., 404, 411 n.40

(1979) (relevant treaties summarized); Agreement on

Trade Relations, Mar. 17, 1978, United States - Hungary,

T.LA.S. No. 8967; Treaty of Friendship, Establishment and

Navigation, Feb. 21, 1961, United States— Belgium, 14

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

Navigation, Oct. 1, 1961, United States— Denmark, 12

U.S.T. 908, 912. Adoption of a more stringent forwm non

conveniens standard would give rise to new problems, as

recognized by Judge Timbers, writing for the en banc

majority below:

The courts either would be obliged to apply this

same vexation standard to foreign nationals who are

the beneficiaries of such clauses, thus barring dis-

missal 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.

[Petition A-15]

Moreover, fundamental fairness coupled with commer-

cial reality mandates that foreign corporations be accorded

equal treatment in United States courts. This Court in

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

an admiralty case, eschewed a parochial approach in the

related area of enforcement of contractual choice-of-forum

19

clauses which send an American plaintiff to a foreign

tribunal. Vacating the decision of the Fifth Cireuit Court

of Appeals en banc, this Court there upheld the validity

of a contract forum—selection clause which required trial

in England by an American plaintiff. There, this Court

observed :

We cannot have trade and commerce in world

markets in international waters exclusively on our

terms, governed by our laws and resolved in our

eourts. Jd. at 9.

Adoption of the parochial approach urged by petitioner

would confer upon multinational corporations, shopping for

a favorable forum, the best of all possible worlds. Such

corporations could move for dismisisal on the ground of

forum non conveniens—as Texaco did in the landmark Sec-

ond Cireuit case of Fitzgerald v. Texaco, Inc., 521 F.2d 448

(2d Cir. 1975), cert. denied, 423 U.S. 1052 (1976), and the

oi! companies did in Farmanfarmaian v. Gulf Oil Corp.,

588 F.2d 880 (2d Cir. 1978)—when they believe their inter-

est will be best served by trial abroad and, of course, resist

forum non conveniens on the grounds that they are an im-

mune American citizen when they have chosen to bring suit

in an American court not surprisingly also in furtherance

of their own best interest.

To summarize, the petition for writ of certiorari should

be denied thereby leaving undisturbed three decades of con-

sistent decisions all of which apply the workable criteria

of Gilbert.

POINT I

THE DISTRICT COURT HAS DISCRETION TO DISMISS

UNDER THE DOCTRINE OF FORUM NON CONVENIENS

NOTWITHSTANDING ANY PROSPECT OF A _ LESSER

RECOVERY BY PLAINTIFF IN THE ALTERNATIVE FO2UM.

The proper application of the doctrine of forum non con-

veniens is not dependent upon whether the alternative

forum provides a more or a less favorable recovery.

20

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

413 (1932); Fitegerald v. Texaco, Inc., 521 F.2d 448, 453

(2d Cir. 1975), cert. denied, 423 U.S. 1052 (1976) ; cf. M/S

Bremen v. Zapata Off-Shore Co., 407 U.S. 1, 8 n.8 (1972)

[enforcing a contract forum selection clause, despite a

lesser limitation fund in the alernative forum, England

(z.e. slightly in excess of $80,000), than in the United States

(i.e. $1,390,000)]. As recognized recently by the Court of

Appeals for the Second Circuit in Fitzgerald v. Texaco,

Inc., 521 F.2d 448, 453 (2d Cir. 1975), cert. denied, 423 U.S.

1052 (1976):

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 emas-

culate 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 re-

mains one of balancing the relevant factors, inelud-

ing the choice of law. (emphasis added) .®

Adoption of another rule would encourage precisely the

type of “transoceanic forum shopping” that the doctrine

of forum non conveniens has heen designed to prevent, sec

Gilbert, 330 U.S. at 507, and that has been criticized in recent

years by this Court, see United States v. Reliable Transfer

8. Counsel for the petitioner misinterprets the meaning of the

last phrase above. His interpretation ignores the essential holding

of the court in Fitzgerald. Affirming dismissal of the action, the

court there held that the possibility of a lesser recovery by the plain-

tiff in the alternative forum was outweighed by “the clear prejudice

which defendants would suffer if jurisdiction were retained, together

with considerations of public interest, and the factors of convenience

.... Id. at 453. Moreover, among the factors expressly considered

by the court in Fitzgerald to weigh against the retention of jurisdic-

tion in the Southern District of New York was, as here, the “in-

reg to implead other parties directly involved in the controversy.”

Id. at 453.

21

Co., 421 U.S. 397, 404 (1975). Under United States statutes,

the limitation fund comprises pending freight and the value

of the vessel owner’s interest in the vessel, measured after

the casualty. 46 U.S.C. § 183. If the casualty here had

resulted in total loss of the M/V Norpic Recent, since

there would have been a virtual nil fund, it is more than

fair to conclude that petitioner would have initiated litiga-

tion in Trinidad and certainly not in any United States

court.

Any contention that the possibility of a lesser recovery

by the petitioner in the alternative forum precludes forum

non conveniens dismissal is without merit. In Canada

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

413 (1932), this Court rejected such a contention in affirm.

ing the district court’s decision to decline to exercise juris-

diction, despite the difference in Canadian and United

States laws governing the extent of recovery for cargo

damages. See also Kloeckner Reederei Und Kohlenhandel

G.M.B.H.v. A/S Hakedal (The Western Farmer), 210 F.2d

754, 756 (2d Cir. 1954), appeal dismissed, 348 U.S. 801

(1954), in which Judge Learned Hand characterized the

difference in recovery as “irrelevant.”

The language in Van Dusen v. Barrack, 376 U.S. 612

(1964), cited by petitioner, has no application to the in-

stant case. In Van Dusen, the lower court’s decision to

transfer forty wrongful death actions under the federal

transfer statute, 28 U.S.C. §1404(a), was remanded for

reconsideration with directions that transfer, if any, should

be conditioned on the transferee district court applying the

state law that would have been applied by the transferor

district court, including the transferor court’s choice of

law rules. In that case, the Court specifically construed the

narrow statutory language of §1404(a) as a “federal

judicial housekeeping measure dealing with the placement

22

of litigation in the federal courts and generally intended

. simply to authorize a change of courtrooms.” Jd. at

637. This Court has never imposed such a restriction on

the inherent authority of the federal district courts to dis-

miss, as in the instant maritime case, pursuant to ghe com-

mon law—or non-statutory—doctrine of forwm non con-

veniens. See Schertenletb v. Traum, 589 F.2d 1156, 1166

(2d Cir. 1978). Indeed, this Court in Van Dusen express-

ly declined to extend its ruling to the issue in the instant

case, and limited its decision to transfers sought by a

defendant under § 1404(a):

We do not and need not consider whether in all cases

§ 1404(a) would require the application of the law of

the transferor, as opposed to the transferee State.

We do not attempt to determine whether .. . the

same considerations would govern ... if it was con-

tended that the transferor State would simply have

dismissed the action on the ground of forum non con-

venrens. 376 U.S. at 639-40 (footnotes omitted)

(emphasis added).?

In any event, dismissal in the instant case is consistent

with practical justice and results in no unfairness to peti-

tioner by the prospect of recovering less than 3.5 million

9. Van Dusen is further distinguishable from the instant case to

the extent any difference in recovery there turned on the application

of conflicting state substantive law. Here, in contrast, any difference

in recovery arises from the fact that we are dealing with two different

limitation of liability statutes, which are considered procedural mat-

ters applied by each forum. Cf. Oceanic Steam Navigation Co. Vv.

Mellor (The Titanic), 233 U.S. 718 (1914); Black Diamond SS.

Corp. v. Robert Stewart & Sons, Ltd. (The Norwalk Victory), 336

U.S. 386 (1949); Kloeckner Und Kohlenhandel v. A/S Hakedal

(The Western Farmer), 210 F.2d 754 (2d Cir. 1954), appeal dis-

missed, 348 U.S. 801 (1954). Even assuming arguendo that limi-

tation of liability statutes were viewed as substantive, petitioner could

take no comfort from the fact because under traditional conflicts of

law principles the substantive law of Trinidad would be applied by

the trial court thus making appropriate the lesser limitation. This

perhaps, best demonstrates why petitioner shopped for an American

forum in this case.

23

dollars in Trinidad.” As stated by the majority en banc

below:

[Ijt is not at all unfair for [petitioner] to recover

the lesser amount. Its pier was in Trinidad. It was

not likely to go traveling. As long as it did not,

Trinidad’s damage limitation law governed. It would

be unfair to impose an additional recovery against

appellee when appellant, fully familiar with the law

of the place where it maintained a permanent busi-

ness, could have insured its additional risk in a pru-

dent fashion. There is no reason to suppose that it

has not done so. [Petition A-29].

Petitioner is neither left without a remedy nor remitted

to an inadequate forum. There is no suggestion in the

record that Trinidad’s common law judicial system is de-

void of due process. Further, dismissal does not deprive

petitioner of security it otherwise would have had. Respon-

dent has submitted to the jurisdiction of the Trinidad courts

and has given a letter of guarantee that a judgment against

it in Trinidad will be satisfied. (Jd. at A-29).

10. Petitioner contends that dismissal will result in its loss of

almost $8,000,000. Respondent submits that this statement, coming

from experienced maritime counsel, familiar with all the facts, is dis-

ingenuous. Both the district court and counsel were aware that the

value of the vessel after the casualty was $3.5 million—the maximum

amount of any limitation fund in an American court. Consequently,

the difference between the amount of the limitation funds in the

United States and Trinidad is not nearly as dramatic and suggested

by petitioner. In this context, respondent’s estimate of the cost of

repair is only $1.5 million. It should also be pointed out that if

petitioner proves that the shipowner had privity or knowledge of the

negligence resulting in the casualty full damages are recovered in

both jurisdictions under the respective limitation of liability statutes.

The references to $8 million in damages is both misleading and

inconsistent with traditional notions of fair play. It should also be

noted that petitioner unilaterally altered the official caption of this

action on the cover and first page of its petition for writ of certiorari

and likewise on each of its appellate briefs in the court below, adding

parenthetical descriptions of the parties in furtherance of its parochial

argument.

24

Conclusion

For the stated reasons, the petition for a writ of cer-

tiorari should be deried.

Dated: New York, New York

June 20, 1980

Respectfully submitted,

Hotuis M. Waker, JR.

40 Wall Street

New York, New York 10005

(212): 344-4700

Attorney for Respondent

JosEPH T. STEARNS

Vera EK. WEINBERG

Of Counsel