Amicus Brief — Alcoa Steamship Co. v. M/V Nordic Regent

NS Supreme Court of the United States

OCTOBER TERM, 1979

“29-185?

ALCOA STEAMSHIP COMPANY, INC.

(a New York Corporation),

Petitioner,

against

M/V NORDIC REGENT, her boilers, tackle, machinery

and other appurtenances in rem and NORCROSS

SHIPPING CO., INC. (a Liberian corporation), as

her owner in personam,

Respondent.

a

MOTION AND BRIEF OF THE AMERICAN INSTITUTE

OF MARINE UNDERWRITERS AS AMICUS CURIAE

IN SUPPORT OF THE PETITION FOR WRIT OF

CERTIORARI! TO THE UNITED STATES COURT

OF APPEALS FOR THE SECOND CIRCUIT

Water E. Matoney

Dovue.as A. JACOBSEN

14 Wall Street

New York, New York 10005

(212) 732-4646

Attorneys for Amicus

Curiae American Institute

of Marine Underwriters

Rosert 8. Burrick

14 Wall Street

New York, New York 10005 .

Of Counsel

TABLE OF CONTENTS

PAGE

Motion:

Statement of Interest of the Amicus Curiae in Sup-

port of the Petition for Certiorari ........... 1

Brier:

Questions NN oe ge 4

ON ete 4

Reasons for Granting Certiorari .................. 5

Introduction ..... msde asta cdecekeDelakess 5

A. To resolve confusion among the circuits, this

Court should set guidelines as to when, if

ever, an American plaintiff may be denied a

right of recourse in the federal courts ...... 6

B. This Court should set the standards control-

ling when if ever, an American plaintiff can

--be sent to a foreign tribunal ............... 9

C. Judicial economy and court congestion should

not be the ultimate factors in forum non

conveniens dismissal relegating an American

plaintiff to a foreign tribunal ............. 12

IN Rid bccuta ca UR haVs Ce cWadwae ces icks bea h es 16

CITATIONS

Cases:

Petition of Bloomfield Steamship Co., 422 F. 2d 728

NG IN Sing Spi acceGu bhp dan pada ees Ka, 9

Bremen v. Zapata Off-Shore Co., 407 U.S. 1 (1972). .6, 9, 11

ii TABLE OF CONTENTS

PAGE

Burt v. Isthmus Development Co., 218 F. 3d 353 (5th

Cir.), cert. denied, 349 U.S. 922 (1955) ........ 8

Chicot County v. Aterwood, 148 U.S. 529 (1893) .... 138

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

SE 5-5 ain oha hd UE IG Es eked ceeded ia ws 14

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

eet Ca Os ROTOR. oi cbne ss soba cur keeaeesess 8

Gulf Ou Corp. v. Gilbert, 330 U.S. 501 (1947) ..4, 6,9, 10,

| 11,12

Hoffman v. Goberman, 420 F. 2d 423 (3rd Cir. 1970) 8

Hyde v. Stone, 20 How. 170 (1858) .............05. 13

Kloeckner Reederei und Kohlenhandel, G.M.b.H. v.

A/S Hakedal, 210 F. 2d 754 (2d Cir. 1954), appeal

dismissed per stipulation, 348 U.S. 801 (1954) .. 9

Koster v. Lwmbermens Mutual Casualty Co., 330 U.S.

OE, Shs peek wi ae keke kh bak e'seceekeks 6, 7, 12

Leasco Data Processing Equipment Corp. v. Maz-

well, 468 F.2d 1326 (2d Cir. 1972) ............. 10

In Re The Louisville Underwriters, 134 U.S. 488

E eahG AES cd euA> 0d anne We tke eh kee es 6 9

McClellan v. Corland, 217 U.S. 268 (1910) .......... 13

Mobil Tankers Co., S.A. v. Mene Grande Oil Co., 363

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

DS a Seg SRE A oe 8, 10

Poseidon v. Schiffahrt, G.M.b.H. v. M/S Netuno, 474

i ee A Es BTR) vhs bcs vcccvspicee sacs 9

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

IS oo roe Soh Sada ns SR a os ho ee a Pe 13

Statutes:

a NY 5 0 as Vac Wind hoe eeeeetenine 12

In THE

Supreme Court of the United States

OCTOBER TERM, 1979

No.

Atooa Steamsuip Company, Inc.

(a New York Corporation),

Petitioner,

against

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

other appurtenances in rem and Norcross SHIPPING

Co.,*Ino. (a Liberian corporation), as her owner

im personam,

Respondent.

Motion and Statement of Interest of the Amicus

Curiae in Support of the Petition for Certiorari.

The American Institute of Marine Underwriters

(AIMU) is a national trade association of 122 insurance

companies, each of which is authorized to engage in the

business of marine insurance in one or more states of the

United States.

Issues of extreme importance to AIMU and its member

companies are presented by the petition for certiorari.

AIMU’s membership underwrites approximately 90% of

the marine insurance written in the United States. This

insurance covers vessels and cargoes engaged in world

wide commerce and losses that may occur anywhere in

the world. In filing this brief amicus curiae, AIMU is

acting in support of the American marine insurance

community.

2

The United States District Courts have traditionally

been forums where a United States citizen would be af-

forded the opportunity to litigate his claims. AIMU is

deeply concerned that the rights of its members be pro-

tected and that American plaintiffs not be denied the

opportunity to litigate their claims in the United States.

AIMU’s interest in this petition also arises out of a

desire for uniformity and certainty in maritime law

throughout the federal courts of the United States. The

decisions of the Southern District of New York Court

and the Court of Appeals for the Second Circuit en banc

are in this instance contrary to the great weight of au-

thority and seriously effect the American insurance

community.

The Court of Appeals for the Second Circuit and the

District Court of the Southern District of New York, in

particular, have historically been principal tribunals for

the trial in the United States of maritime cases, no matter

where arising. The refusal of the District Court to ex-

ercise its jurisdiction in a case such as this, where plaintiff

is an American citizen and resident and defendant is doing

business in New York, seriously affects the rights of

AIMU’s membership, and indeed, of all American inter-

ests with respect to foreign trade. Since New York is

the nation’s largest port and its principal center for ship-

ping, marine insurance and chartering, it is frequently the

only place in the United States where jurisdiction can be

obtained over a given foreign defendant or vessel in an

admiralty case.

The decision of the Second Circuit fails to recognize the

needs of all Americans involved in international commerce,

including the shipping industry and insurance community.

AIMU is confident that if consideration is given to all of

_ the potential effects of the en bane decisicn, this Court will

3

maintain the uniformity and harmony of the law on forum

non conveniens.

AIMU first participated in this case on rehearing to

the Second Circuit Court of Appeals amicus curiae. It

was then ordered by that Court to submit a brief in sup-

port of its position to the en banc panel as a party recog-

nized as having a legitimate interest in the forum non

conveniens issues to be considered. Acceptance of AIMU’s

brief amicus curiae in support of the petition for certiorari

is consistent with proceedings thus far conducted in this

matter.

In view of the foregoing reasons, AIMU respectfully

prays that this Honorable Court accept its brief amicus

curiae.

Respectfully submitted,

Water FE. Matoney

Doveias A. JACOBSEN

14 Wall Street

New York, New York 10005

(212) 732-4646

Attorneys for Amicus

Curiae American Institute

of Marine Underwriters

Rosert S. Burriox

14 Wall Street

New York, New York 10005

Of Counsel

4

BRIEF OF THE AMERICAN INSTITUTE OF MARINE

UNDERWRITERS AS AMICUS CURIAE IN SUP-

PORT OF THE PETITION FOR WRIT OF CER-

TIORARI TO THE UNITED STATES COURT OF

APPEALS FOR THE SECOND CIRCUIT

Questions Presented

A. Does the decision of the en banc majority of the United

States Court of Appeals for the Second Circuit decided

on February 25, 1980 so confuse the uniformity and

harmony of the decisions of the United States Supreme

Court and the Courts of Appeals in other Circuits as

to require the supervision of this Court?

B. When, if ever, can an American citizen be relegated

to a foreign tribunal and sent abroad on the basis of

forum non conveniens?

C. Should judicial economy and court congestion have any

effect on a district court’s evaluation of forwm non

conveniens dismissal of an American plaintiff to a

tribunal of a foreign country?

Statement of Facts

In Alcoa Steamship Company, Inc. v. M/V Nordic

Regent, 453 F.Supp. 10 (S.D.N.Y. 1978), Alcoa Steamship

Company, Ine. [petitioner herein], a New York corporation,

commenced an action in the United States District Court

for the Southern District of New York against the M/V

Nordic Regent, in rem, and against her owner, Norcross

Shipping Company, a Liberian corporation, in personam,

for damages caused by the vessel when it collided with

Aloca’s pier at Point Tembladora, Trinidad, causing dam-

ages of approximately $8,000,000.00.

5

The judgment of the United States District Court con-

ditionally dismissed the action on grounds of forum non

conveniens.

On appeal, a divided panel of the United States Circuit

Court of Appeals for the Second Circuit affirmed the

district court’s judgment. On rehearing, the original

panel’s order of affirmance was withdrawn, and the dif-

ferently divided panel issued a new order reversing the

district court’s judgment.’ On en banc consideration of the

appeal, the judgment and opinion of the panel on rehearing

was vacated, and the judgment of the district court was

reaffirmed.®

REASONS FOR GRANTING CERTIORARI

Introduction

The effect of the holding of the Court of Appeals for the

Second Circuit is that an American citizen no longer has a

right to the availability of an American court. To ac-

complish this result, the Second Circuit sets up a new

framework for determining forwm non conveniens dis-

missal which places an onerous burden on the American

plaintiff rather than the defendant. The ultimate deciding

factor appears to be the availability of calendar time in the

court’s docket. Thus, the decision seriously threatens to

eliminate the right of an American plaintiff to sue a

foreign defendant in an American court based upon

the court’s admiralty jurisdiction. It also undermines the

separation of powers doctrine in which the legislative

* Alcoa Steamship Company, Inc. v. M/V Nordic Regent, F.2d,

slip op. 4587 (2d Cir. decided August 31, 1978).

* Alcoa Steamship Company, Inc. v. M/V Nordic Regent, F.2d,

slip op. 5367 (2d Cir. decided January 10, 1979).

* Alcoa Steamship Company, Inc. v. M/V Nordic Regent, F.2d,

slip op. 5945 (2d Cir. decided February 25, 1980) (en banc).

6

branch is empowered to establish courts of competent

jurisdiction to hear disputes involving a foreign subject

matter.

A. To Resolve Confusion Among the Circuits,

This Court Should Set Guidelines as to When,

if Ever, an American Plaintiff May Be Denied

A Right of Recourse in the Federal Courts.

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

the Supreme Court established that even a non-resident

plaintiff’s choice of forum should not be disturbed unless

the balance of convenience is strongly in favor of the

defendant. The Court reiterated this standard using

stronger language in Koster v. Lumbermens Mutual

Casualty Co., 330 U.S. 518 (1947), which was decided on

the same day as Gulf Oil, when it held that a resident

plaintiff’s choice of forum should not be disturbed ‘‘except

upon 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... .’’ Id. at

524. The burden of such a showing is cast upon the de-

fendant in either case. The burden should be heavier with

respect to relegating a resident plaintiff to another country

than with respect to a non-resident plaintiff. Neither of

the above cases involved relegating a resident American

plaintiff to a tribunal in a foreign country.

The only exception to this standard was announced by

the Supreme Court in Bremen v. Zapata Off-Shore Co., 407

U.S. 1 (1972). In Bremen, the Court held that a con-

tractual forum selection clause freely bargained for be-

tween an American plaintiff and a foreign defendant should

bind the parties to the forum chosen in the contract. If an

American plaintiff seeks to avoid the contractually chosen

forum by commencing an action in its home jurisdiction,

then that plaintiff must meet the heavy burden of showing

that trial in the contractual forum would be so ‘‘manifestly

and gravely inconvenient’? that it would be ‘‘effectively

deprived of a meaningful day in court.’’ Jd. at 19.

7

In Alcoa, there was a forum selection clause for the

Southern District of New York with respect to charter

party disputes between plaintiff and defendant’s sole

shareholder. This was ignored by the court below and

instead, the en banc decision placed a similar burden upon

this American plaintiff seeking to commence suit in the

United States District Court for the Southern District of

New York as it would if Alcoa had agreed upon a Trinidad

forum. Alcoa contains no contractual aspects at all, but is

a pure tort situation wherein defendant’s vessel struck

plaintiff’s pier.

The en banc Court accepted defendant’s contention that

since the New York forum was inconvenient to the foreign

defendant, then the American plaintiff must prove that

transfer to a Trinidad tribunal would deprive it of sub-

stantial justice and due process of law. The Court arrived

at this conclusion by obverse reading of the decision in

Koster which provided two independent tests for analyzing

forum non conveniens issues:

‘*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 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 inappropriate because of considerations affect-

ing 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 inconvenience the

defendant may have shown.’’ 330 U.S. at 524 (em-

phasis added) Alcoa at 5954 (en banc)

The Alcoa decision ignored the first part of the Koster

test by rejecting petitioner’s contention that where an

8

American plaintiff is suing a foreign defendant, then plain-

tiff’s action may be dismissed on forwm non conweniens

grounds only if defendant meets its burden of showing

vexation or oppression.

This decision by the Court of Appeals for the Second

Circuit has created a split among the Circuits. Courts in

various other Circuits have expressed judicial reluctance

to deny an American citizen the right to sue in his home

forum by requiring the defendant to present clear evidence

of extreme circumstances making it materially unjust to

the defendant that jurisdiction remain in the American

courts. Hoffman v. Goberman, 420 F.2d 423, 426 (3rd Cir.

1970); Mobil Tankers Co., S.A. v. Mene Grande Oil Co.,

363 F.2d 611, 614 (3rd Cir.) cert. denied, 385 U.S. 945

(1966); Burt v, Isthmus Development Co., 218 F.2d 353,

357 (5th Cir.), cert. denied, 349 U.S. 922 (1955) ; Founding

Church of Scientology v. Verlag, 536 F.2d 4299, 436 (D.C,

Cir. 1976). Inconvenience suffered by the defendant is not

sufficient to meet this criterion without additional proof

of an intent by plaintiff to vex or harass. Founding

Church of Scientology v. Verlag, supra at 436; H offman v.

Goberman, supra at 426; Mobil Tankers Co., S.A. v. Mene

Grande Oil Co., supra at 614.

Petitioner’s contention that defendant has the burden

of proving ‘‘vexation’’ is soundly based not only in Ameri-

can jurisprudence but the law of England as well. Ina

footnote, the en banc Court in Alcoa recognized that the

position advocated by Alcoa was the ‘*English standard

for granting a motion to dismiss on the basis of forum non

conveniens [which] required a showing that the trial of the

case in the chosen forum would be vexatious and oppres-

sive’? Alcoa at 5992, n. 3 (en banc) (emphasis added). The

Second Circuit failed to acknowledge that this is also

United States law.

In any event, the significance of English decisions in

areas of admiralty law should not be so lightly brushed

9

aside. In Bremen v. Zapata Off-Shore Co., supra, the

Supreme Court set aside years of American precedent dis-

approving forum selection clauses. According great weight

to the approach followed in England, the Court: decided to

enforce the clause in conformity with English decisions.

The Court specifically noted the long experience of English

courts in admiralty litigation. Jd. at 12.

A motion to dismiss a complaint on the basis of forum

non conveniens should be subject to special scrutiny in a

case such as the one at bar. By the very nature of ad-

miralty law, involving ships moving in international trade,

traveling in international waters, an interested party may

well expect to be involved in extensive far-flung litigation.

Lowsville Underwriters, 134 U.S. 488 (1890); see Petition

on Bloomfield Steamship Co., 422 F.2d 728, 736 (2d Cir.

1970). Hence, in admiralty, even an “alien plaintiff has

the privilege of suing an alien defendant wherever he

can serve him, or attach his property; and . . . if the

defendant would avoid the suit, he must show that he

will be unfairly prejudiced, unless it be removed to some

other jurisdiction.” Kloeckner Reederei und Kohlen-

handel G.M.b.H. v. A/S Hakedal, 210 F.2d 754, 756 (2d

Cir. 1954), appeal dismissed per stipulation, 348 U.S. 801

(1954); see Poseidon v. Schiffahrt, G.M.b.H. v. M/S

Netumo, 474 F.2d 208, 205 (5th Cir. 1973). Should the

rights of a resident U.S. plaintiff be less than those of a

non-resident alien plaintiff?

B. This Court Should Set The Standards Con-

trolling When, If Ever, An American Plain-

tiff Can Be Sent to a Foreign Tribunal.

In rejecting petitioner’s contention to apply the “vexa-

tious standard” in the instant case, the Second Circuit

also adopted the district court’s wooden analysis of the

factors set forth in Gulf Oil Corp. v. Gilbert, supra, which

the en banc Court held must be considered with regard to

10

a forum non conveniens analysis. Factors of “private”

interest to be considered include:

“' . . Telative ease of access to sources of proof;

availability of compulsory process for attendance of

unwilling, and the cost of obtaining attendance of

willing witnesses; possibility of view of premises, if

view would be appropriate to the action; . . . all

other practical problems that make trial of a case

easy, expeditious and inexpensive[ ;] the enforceability

of a judgment if one is obtained . . . [and] the rela-

tive advantages and obstacles to a fair trial.’’

Id. at 508.

The factors of “public” interest to be evaluated are as

follows: administrative difficulties resulting from litiga-

tion piling up in congested centers instead of being

handled at its origin; jury duty burdening the people of

the community which has no relation to the litigation;

local interests in having localized controversies decided at

home; and application of foreign law.

The district court blindly applied these factors to the

instant case by reciting that the accident, damage and

tortious conduct occurred in Trinidad; some of the wit-

nesses which may be called are from Trinidad; the tides

and currents around Trinidad may effect the trial of the

case; the pilots’ association may be impleaded if the case

was tried-in Trinidad; and the law of Trinidad and

Tobago may be applied. Alcoa at 5972 (en banc). How-

ever, defendant offered no positive evidence or affidavit

‘o the effect that retention by the U.S. courts would be

unjust. Leasco Data Processing Equipment Corp. v.

Maawell, 468 F.2d 1326, 1344 (2d Cir. 1972); Mobil

Tankers Co., S.A. v. Mene Grande Oil Co., supra at 614.

This manner of analyzing the Gilbert factors is anach-

ronistic to modern admiralty litigation. The difficulty of

obtaining distant witnesses (a problem which often arises

11

in cases of a maritime nature) has been largely alleviated

by the use of deposition testimony. The significance of

this trend was recognized by the majority in the Bremen

case, supra, where Chief Justice Burger wrote that “it is

not unusual for important issues in international ad-

miralty cases to be dealt with by deposition.” The effec-

tiveness of this method was also recognized by the Bremen

Court where it was noted that ‘‘[bJoth the District Court

and the Court of Appeals majority appeared satisfied

that [defendant] could receive a fair hearing . . . by

using deposition testimony of its witnesses from distant

places . . .’? Bremen, supra at 19.

Easy access to sources of proof and witness testimony

no longer presents the problem it did when the Gilbert

case was decided. As aptly pointed out by Judge Oakes

in the Alcoa case, “there are several jets a day between

New York and Trinidad to transport witnesses, docu-

ments, and lawyers if need be.’’ Alcoa at 5974 (en banc)

(Judge Oakes concurring in dissenting opinion).

Furthermore, enforceability of a judgment no longer

presents an obstacle in most cases. Letters of undertaking

or bonds are generally put up by the insurance companies

involved to insure payment of any judgment.

These are the practical realities of present day admiralty

litigation which make the ‘‘trial of a case easy, expeditious

and inexpensive’* and which must be properly weighed

in a forum mon conveniens analysis. In light of these con-

siderations, the balancing of all pertinent factors would

clearly not weigh in favor of the foreign defendant.

* Gulf Oil Corp. v. Gilbert, supra at 508.

%

12

C. Judicial Economy and Court Congestion

Should Not Be the Ultimate Factors in Forum

Non Conveniens Dismissal Relegating An

American Plaintiff to a Foreign Tribunal.

The en banc opinion of the Second Circuit relied to a

great extent on the 1947 decision of this Court in Gulf Oil

Corp. v. Gilbert, supra, which recognizing that a plaintiff’s

choice of forum should rarely be disturbed, nevertheless

gave discretion to the district judge in ruling on a motion

to dismiss based upon forum non conveniens if certain

criteria were met. However, Gulf Oil involved the transfer

of an action, brought by a nonresident, from one state in

the United States to another.’ Mr. Justice Jackson speak-

ing for this Court never intended to emasculate the rights

of resident United States citizens by forcing them from

their legitimate home forum where they have jurisdiction

over defendants and requiring them to litigate in a foreign

tribunal. Gulf Oil merely sought to relegate the plaintiff

to an equally competent federal court which had a closer

nexus to the disputed issue.

Moreover, the en banc Court’s interpretation of the deci-

sion in Koster, swpra, announcing two independent criteria

to determine the proper forum for resolution of a dispute,

allows a district court to dismiss an American plaintiff’s

action on the sole criterion that trial in the chosen forum

would be inappropriate because of ‘‘considerations affect-

ing the court’s own administrative and legal problems.”’

Id. at 524. This means that a U.S. citizen’s action can be

dismissed to a foreign forum where he may (and in this

* The Gulf Oil decision was codified into law the following year

by the enactment of 28 U.S.C. § 1404(a) which provides:

“(a) For the convenience of the parties and witnesses, in the

interest of justice, a district court may transfer any civil

action to any other district or division where it might

have been brought.’’

13

4

case would) recover far less of his provable loss simply

because of an overburdened federal docket.

The congested federal courts do pose a serious threat

to judicial efficiency and this dilemma has resulted in

movements for judicial reform by Congress such as the

elimination of diversity jurisdiction. However, eliminat-

ing diversity jurisdiction would simply relegate the plain-

tiff to an equally capable state court, not deprive him of

any American forum. Federal district courts have at-

tempted to utilize other recognized doctrines, such as re-

manding cases removed from the state court or abstaining

from hearing certain cases. Once again, the effect of

these decisions is to relegate the plaintiff to the state

court.®

The potential prejudice in future cases from the broad

statement of dismissal in Alcoa cannot be underestimated.

It goes beyond the immediate fact that a judgment in

Trinidad would be limited to approximately $570,000 while

a judgment in a U.S. court could exceed $8,000,000. It

extends to the unknown elements involved in a foreign

trial and the undercurrent of prejudice against American

citizens which permeates the world news. Judge Van

Graafeiland, in dissenting from the Alcoa (en banc)

majority succinctly observes:

“The economic demands of the poorer countries and

their nationalistic treatment of foreign investments

6 However, this Court in Thermtron Products, Inc. v. Hermans-

dorfer, 423 U.S. 336, 344-45 (1976), citing McClellan v. Corland,

217 U.S. 268 (1910), Chicot County v. Aterwood, 148 U.S. 529

(1893) and Hyde v. Stone, 20 How. 170 (1858), has warned

that .. . “an otherwise properly removed action may no more be

remanded because the district court considers itself too busy to try

it than an action properly held in the federal court in the first in-

stance may be dismissed or referred to state courts for such

reason,” Such a statement should, no doubt, be looked at more

strictly where the effect of the district court’s ruling would pre-

elude an American plaintiff from access to any United States court.

14

are evidence to some of a ‘fissuring of planetary

policy that is both wide and deep.’ ‘Barriers of

emnity and fear’ divide many of this planet’s in-

habitants. Armed conflict, terrorism, and rebellion

vie for international headlines. American citizens are

held hostage in American embassies. Stable govern-

ments and independent judiciaries are hardly uni-

versal phenomena.”

Alcoa (dissent) (en banc), supra, at 5979.

Furthermore, the retention of jurisdiction in an Ameri-

can court would not offend the sovereignty of the Republic

of Trinidad and Tobago. The Alcoa case involves two

corporations neither of which is incorporated in Trinidad.

The vessel was owned by a Liberian corporation and the

pier was owned by an American corporation. Trinidad

has no interest in this dispute other than the fortuitous

fact that the allision occurred there. Thus, the Trinidad

court would be in no better position than the U.S. Court

to hear the dispute.’

The inequity of the Alcoa en bane decision derives from

the fact that an American corporate plaintiff, paying a

considerable amount of tax dollars into the local economy,

is being denied access to the local district court because the

trial might be costly and burdensome. Consequently, a

Liberian defendant, incorporated in Liberia merely to

streamline its costs, is able to force an American plaintiff

out of its own courts under the guise of a forum nom con-

* The facts in the instant matter are unlike those in Farman-

farmaian v. Gulf Oil Corp., 588 F2d 880 (2d Cir. 1978). There,

plaintiff, a non-resident alien (an Iranian citizien) with no connec-

tion to the United States, unsuccessfully sought to use an Ameri-

can Court to resolve a dispute involving Islamic and civil law

arising out of an alleged conspiracy to breach contractual rights

in a stock option plan. But consider the difficulties an American

— would encounter if relegated to the Iranian courts in

such a case.

15

veniens argument. The en bane decision enables it to fur-

ther streamline these costs by obtaining jurisdiction in a

foreign forum which severely restricts the U.S. citizen’s

potential recovery.

Congress has chosen to rigidly regulate the United States

shipping industry, requiring some of the highest safety

and wage standards throughout the world. The practical

effect of these measures is that a small country such as

Liberia, which imposes minimal governmental control,

boasts a flourishing shipping industry, while our marine

industry and the international corporations involved in it,

struggle to compete. In view of the United States maritime

policy, the courts should exhibit a parens patriae attitude

towards its domestic shipping industry and to Americans in

general, and give an American corporate plaintiff the

protection of its home forum barring any denial of due

process or substantial justice to a foreign defendant.

In this case sub judice, no basic injustice has been in-

dicated by the defendant. More importantly, the burden of

proving an intent to ‘‘vex’’ or ‘‘harass’’ was never re-

quired of the defendant. Norcross Shipping’s motion to

dismiss on grounds of forum non conveniens was supported

by ‘‘two short, almost cursory, affidavits of one of defend-

ant’s New York attorneys, with an attached affidavit of the

ship’s master . . . .’’ Alcoa, supra, at slip op. 4585

(August 31, 1978) (Judge Van Graafeiland, dissenting).

The substance of these documents merely asserted an in-

convenience to the defendant.

In affirming the district court’s ‘‘convenience standard”’

as a method of determining the appropriate forum, the

en banc Court heavily emphasized the factor of court ef-

ficiency and expediency. This emphasis, however, sacrifices

the most important consideration of a forwm non conveniens

analysis—to do substantial justice.

16

CONCLUSION

In view of the foregoing reasons, it is respectfully

urged that the petition for a writ of certiorari be

granted.

Respectfully submitted,

Watrter EF. Maroney

Doveias A. JACOBSEN

14 Wall Street

New York, New York 10005

(212) 732-4646

Attorneys for Amicus

Curiae American Institute

of Marine Underwriters

Rosert 8S. Burriok

14 Wall Street

New York, New York 10005

Of Counsel