# Opposition — Alcoa Steamship Co. v. M/V Nordic Regent > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385006_2428%3A2 ## Record - **Collection:** Supreme Court brief - **Document type:** Opposition - **Published:** January 1, 1980 - **Citation:** 449 U.S. 890 ## Text 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.