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

S

eS 9, In THE

S Supreme Court of the United States

Ocroser Trerm, 1979

no 9 = 1857

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

Petitioner,

—against—

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

tenances in rem, and NORCROSS SHIPPING CO., INC. (a Liberian

Corporation), as her owner in personam,

Respondent.

On Petition for a Writ of Certiorari to the United States

Court of Appeals for the Second Circuit

MOTION AND BRIEF OF THE ASSOCIATION OF TRIAL

LAWYERS OF AMERICA AS AMICUS CURIAE IN

SUPPORT OF THE PETITIONER

THEODORE I. KOSKOFF

President

55 Chapel Street

P.O. Box 1698 :

Bridgeport, Connecticut 06604

ARTHUR ROTH

Chairman, Admiralty Law Section

1111 Ainsley Building

14 Northeast Ist Avenue

Miami, Florida 33132

GEORGE J. DUFFY

One Newark Street

ae New Jersey 07030

(201) 659-2635

Of Counsel

Adams Press Corp., 5 Commerce Street, Newark, N. J. 07102—(201) 623-8611

TABLE OF CONTENTS

Motion AND STATEMENT OF INTEREST OF THE ASSO-

CIATION oF TRIAL LAwyrerRsS oF AMERICA FOR LEAVE

TO INTERVENE AS Amicus CuRIAE In SUPPORT OF THE

a ee

Brief in Support of Motion:

Questions Presented ...W..........

Point I—The American citizenship and local resi-

dence of petitioner should be heavily weighted

in balancing the factors to be considered on

a motion to dismiss on the grounds of forum

REET TT

Point Il—The prospect of substantial prejudice

to the petitioner resulting from dismissal of

the case ought not to be equated with con-

siderations of “inconvenience” to the respond-

andalinittincciotien ib pctenniennenatiniiGlinisanitanniticciiansetnamteiind

Point [1[—Restatement of the factors which are

left to the discretion of the trial court is re-

quired, where the doctrine of forum non con-

Veniens iS INVOLVE oon... nee ceccecscceceeececcceceeroce

Conclusion

Cases Cited

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

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

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

RII EE RUC) nisescccecesccuceisssenesvencoowasconascesveressseres

PAGE

qn

li TABLE OF CONTENTS

Factors Etc., Inc. v. Pro Arts, Ine., 579 F.2d 215

(2nd Cir., 1978), cert. denied, 440 U.S. 908 (1979) ..

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

cert. denied, 423 U.S. 1025 seivieeaiecoadh daeccoluaigenna

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

Koster v. Lumberman’s Mutual Casualty Co., 330

Ris NE cnadcinanianguqnsiaale

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

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

Williams v. Green Bay & Western RR, 326 U.S.

549 ......

Statute Cited

28 U.S.C.:

Sec. 1404(a) .

PAGE

IN THE

Supreme Court of the United States

Ocroser TERM, 1979

No.

>

——_

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.

On Petition for a Writ of Certiorari to the United States

Court of Appeals for the Second Circuit

>.

- a

MOTION AND STATEMENT OF INTEREST OF THE

ASSOCIATION OF TRIAL LAWYERS OF AMERICA

FOR LEAVE TO INTERVENE AS AMICUS CURIAE

IN SUPPORT OF THE PETITIONER

The Association of Trial Lawyers of America hereby

requests permission to file a brief Amicus Curiae in the

above matter. The Association of Trial Law yers of Amer-

ica is a national bar association consisting o* more than

forty thousand lawyers. By the terms of its By-Laws,

membership requires that the greater portion of a law-

yer’s practice be on behalf of plaintiffs in personal injury

litigation or workers’ compensation. The application to

be heard in this case is on behalf of those clients, past,

present and future, who make up our collective constitu-

ency and represent a large segment of the American pub-

lie who may be involved with the courts and the litigation

process in connection with a personal injury claim.

Many of our members are specially involved represent-

ing maritime plaintiffs and aviation plaintiffs, who would

be most likely directly affected by the outcome and se-

quelae from this case. We submit that the brief argu-

ments which we present, and which are based on the col-

lective experience of our members and put forward in

the interests of our clients, will be of assistance to the

Court.

For the foregoing reasons, it is respectfully prayed

that this Honorable Court accept this brief Amicus Curiae.

TrHeropore I. Koskorr

President

55 Chapel Street

P.O. Box 1698

Bridgeport, Connecticut 06604

ArtHur RotH

Chairman, Admiralty Law Section

1111 Ainsley Building

14 Northeast Ist Avenue

Miami, Florida 33132

Grorce J. Durry

Of Counsel

One Newark Street

Hoboken, New Jersey 07030

Questions Presented

I. May a District Court sitting in Admiralty dismiss

the Complaint of a local American resident corporation

on the grounds of forum non conveniens?

II. May purported “inconvenience” to the Respondent

be balanced, either in justice or in logic, against the

prospect of eliminating over ninety percent of Petitioner’s

recovery by dismissing the Complaint?

III. Should this Court re-examine and restate the doc-

trine of forum non conveniens in the light of present day

communications and transportation technology?

POINT I

The American citizenship and local residence of peti-

tioner should be heavily weighted in balancing the fac-

tors to be considered on a motion to dismiss on the

grounds of forum non conveniens.

The motor vessel Norpic Recent and the ecrporate Re-

spondent, Noreross Shipping Co., Inc., are wholly owned

by Anglo-Nordie Shipping Co., Ltd. Anglo-Nordie has an

office at Avenue of the Americas and 42nd Street in Man-

hattan. It is a Bermuda corporation, but has mortgaged

its fleet of vessels, including the M/V Norpic Recent, to

Morgan Guaranty Trust Company in New York. It also

acts as “General Agent” for the corporate owner by which

means in personam jurisdiction over Noreross was ob-

tained in this litigation. It was Anglo-Nordie which en-

. tered into the Charterparty by which tl > contractual rela-

tionship between Petitioner and the vessel was estab-

lished and circumscribed for the carriage of ore for Aleoa’s

account. The Charterparty called for litigation forum in

the Southern District of New York.

4

These multi-national vessel interests, who operate their

business, and obtain their financing and business customers

in New York City, have succeeded in ousting the New York

Petitioner from its own United States Court. We will not

discuss the frailties of the discretionary legal basis upon

which this was done, leaving those arguments to the well-

spoken petition-in-chief.

We do wish, however, to explore with the Court the

ramifications of the result in this case. Since a corporate

party is entitled to equal treatment and standing in our

courts just as an individual person, the ruling in question

paves the way for individual American citizens to have

their litigation relocated out of our courts and into for-

eign arenas, notwithstanding jurisdiction over a defend-

ant being present.

This will chill our heritage of free access to the courts.

And free access is one of the underpinnings of the doc-

trine of forum non conveniens insofar as part of that doc-

trine is that plaintiff’s choice of forum should rarely be

disturbed. More often than not, the individual American

citizen will sue a foreign defendant in a federal court on

a transitory cause of action basing jurisdiction on diver-

sity of citizenship. Procedurally, admiralty was unified

with the so-called “civil-side” of the District Courts in

1966. It can be predicted that only a further small step

need to be taken by a District Court in its discretion to

dismiss an American’s diversity suit against a foreigner,

if the principles endorsed by the Second Circuit in this

ease are left standing. Foreign persons and foreign cor-

porations can expect equal justice in our courts. The same

cannot be said for American citizens before the courts or

legal systems of all of the nations of the world.

We humbly urge that the Court reaffirm the holdings in

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

(3rd Cir.), cert. denied, 385 U.S. 945 (1966), and Burt v.

Isthmus Development Co., 218 F.2d 353 (5th Cir.), cert.

denied 349 U.S. 922 (1955), and reverse the Second Cir-

cuit Court of Appeals ruling in this case.

POINT II

The prospect of substantial prejudice to the peti-

tioner resulting from dismissal of the case ought not

to be equated with considerations of “inconvenience”

to the respondent.

The District Court considered the Trinidad forum as

possibly “less favorable” under circumstances where it

appears the difference in recovery would be in excess of

ninety percent. Fitzgerald v. Texaco Inc., 521 F.2d 448

(2nd Cir.), cert. denied, 423 U.S. 1025, was cited as sup-

porting authority. But Fitzgerald is not authoritative. At

pp. 452, 453, the Court in that decision dealt with plain-

tiff’s argument that the general maritime law as applied

in England would be less favorable to them than the

American interpretation. In footnote 6 on page 452, Judge

Anderson sets forth his analysis that the interpretations

of the duty of an owner to mark a wreck under the gen-

eral maritime law are essentially the same in the English

courts as in American courts. Thus, the court did not

weigh the factor of less favorable legal rights in uphold-

ing the dismissal, but rather, it found the argument of

no merit or application to the circumstances of the case.

Reliance upon Canada Malting Co., Ltd. v. Paterson

Steamships, 285 U.S. 413 (1932), in support of this propo-

sition is likewise not well-founded. Canada Malting was

an all-Canadian litigation wherein it was held to be within

the diseretion of the District Court to dismiss the case

when the litigants were all citizens of the same foreign

state. The Supreme Court left to the Canadian court,

where litigation was already pending, the issue whether

the American Great Lakes situs of the collision would re-

quire the application of American collision law instead of

Canadian law.

It is respectfully submitted that the substantial legal

prejudice to the Petitioner far outweighed any “incon-

venience” to Defendant and the ruling below should be re-

versed.

POINT III

Restatement of the factors which are left to the dis-

cretion of the trial court is required, where the doc-

trine of forum non conveniens is involved.

This Court in Gulf Oil Corporation v. Gilbert, 330 U.S.

501 (1947), set forth a generalized enumeration of the

factors to be considered and the criteria to be followed

by trial courts in exercising discretion when applying the

doctrine of forum non conveniens. Gulf was prior to

§ 1404(a) of the Judicial Code, Title 28 U.S. Code, but

its teachings have survived the statutory enactment which

governs transfers within the District Court system. ‘The

doctrine leaves much to the discretion of the court to

which plaintiff resorts ...’ (330 U.S., page 508) with the

understanding that the trial court will be in the best

position to develop all of the salient factors which must

be considered in making the determination in a particu-

lar case. Unfortunately, the District Court in this instance

failed to follow elemental guidelines which have been

established regarding the precise identification of wit-

nesses who would be subject to inconvenience. (Factors

Eic., Inc. v. Pro Arts, Inc., 579 F.2d 215, 218 (2nd Cir.,

1978), cert. denied, 440 U.S. 908 (1979); cf. dissent Van

Graafeiland, C.J., A-36, Appendix B, Petition). That

would not justify reexamination of the governing criteria,

but rather, remand with instructions to follow the criteria.

In Koster v. Lumberman’s Mutual Casualty Co., 330

U.S. 518, it was stated that, while each case would turn

on its facts (p. 528; see also Williams v. Green Bay &

Western RR, 326 U.S. 549, 557), “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.” It should then be considered whether

the plaintiff’s choice of forum constitutes oppressiveness

and vexation to the defendant so as to be disproportion-

ate to plaintiff’s own convenience. The court’s own ad-

ministrative concerns may also be considered, but it is a

fact of life that New York is a pre-eminent commercial,

shipping, financial, and legal center, with a consequent

high incidence of litigation. Both parties here, essen-

tially, are “New Yorkers”.

Since there is no element of oppression in Petitioner’s

action, it is questionable whether the balancing should be

undertaken. But it is respectfully submitted that balance

of convenience, insofar as it may be a part of the entire

doctrine of forum non conveniens, must be considered in

modern terms. Routine depositions can be conducted in

one day’s time between most metropolitan centers in the

United States. It is generally easier and less expensive

for a lawyer handling a file to fly to a distant location

and take testimony rather than hire local counsel who

must then become familiar with the file in order to par-

ticipate.

We are also beyond the threshold of the great advances

in communication and electronics and, specifically, we re-

fer to the videotaped deposition. It has been a long-time

established practice particularly in admiralty cases to rely

extensively for proof at trial on depositions, and advances

in technology have made television more economical and

thus it will become an increasingly utilized tool in the

judicial process.

On the other hand, it can be argued that the trial courts

are in the best position to perform the cost analyses which

may be required to weigh the balance of convenience,

which would militate against the court speaking again on

this issue. But there was in this case a number of dis-

eretionary errors made which now carry the imprimatur

of the Second Circuit, and this in our humble opinion

requires reversal. The case also presents the opportunity

to restate the doctrine, and the call of Cireuit Judge

Oakes (concurring in the dissent, A-32, Appendix B) for

just such reexamination should be acted upon.

CONCLUSION

The erroneous dismissal of the American Petitioner’s

case from its own local District Court requires reversal.

The far-reaching effect of the decision below and mod-

ern transportation and communication technology re-

quires this Court to review the court-made doctrine of

forum non conveniens.

Respectfully submitted,

THEODORE I. Koskorr

President

55 Chapel Street

P.O. Box 1698

Bridgeport, Connecticut 06604

ArtHurR Roru

Chairman, Admiralty Law Section

1111 Ainsley Building

14 Northeast Ist Avenue

Miami, Florida 33132

Grorce J. Durry

One Newark Street

Hoboken, New Jersey 07030

Of Counsel