# Amicus Brief — 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%3A5 ## Record - **Collection:** Supreme Court brief - **Document type:** Amicus Brief - **Published:** January 1, 1980 - **Citation:** 449 U.S. 890 ## Text 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 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385006_2428%3A5. Public record. Not legal advice.