This is a motion by the defendant to dismiss the complaint on the ground of forum non conveniens. Jurisdiction over the subject matter is based on 28 U.S.C. Section 1333. Jurisdiction over the defendant was obtained by Maritime Attachment Process issued against defendant’s bank account in New York City. For the reasons hereinafter stated, the motion is denied.
This action аrises out of a collision involving the S.T. Esso Aruba owned pro hac vice by the plaintiff, Esso Transport Company, Inc., and the S.S. Wapello. At the time of the incident, the Wapello wаs being towed by two tugs owned and operated by the defendant, Terminales Maracaibo, C.A. The collision occurred approximately eight miles off thе Venezuelan coast between that coast and the island of Aruba. The plaintiff alleges that the collision was due to the negligence of the defеndant.
The Esso Aruba is of Panamanian registry. Its home port is Panama City, Republic of Panama. As noted above, it is owned pro hac vice by the plaintiff Esso Transport Company, Inc., a corporation duly organized and existing under the laws of the Republic оf Panama and which apparently does no business in the Southern District of New York. The officers and crew of the Esso Aruba are Italian and apparently reside in Italy. One eyewitness to the collision, a non-crew member who was аboard the Esso Aruba, resides and works within the Southern District of New York.
The defendant, Terminales Maracaibo, C.A., is a corporation existing under and by virtue of the lаws of the Republic of Venezuela and has its principal offices in that Cоuntry. It does not have a place of business in New York nor does it appear to transact any business in the United States. The tugs owned and operated by Tеrminales Maracaibo are of Venezuelan registry. All of the defendant’s witnesses appear to be residents of Venezuela.
It further appeаrs that all records which may have to be produced are located in either Venezuela or Panama.
The only issue is whether this Court should decline tо exercise the jurisdiction, which it eoncededly has, because it is an inconvenient forum. Although it seems clear that the Southern District of New York has only the mоst minimal contacts with this case, the Court feels constrained to retain jurisdictiоn in the interest of justice. There evidently is no more convenient forum in which this cаse can be heard on its merits. It appears that this action is time-barred in both Venezuela and Panama. There is some evidence that the Venezuеlan statute of limitations cannot be waived as a matter of public pоlicy. Although the Panamanian statute of limitations can apparently be waived, the defendant indicated at a hearing on this motion that it would be unwilling to do so.
Under these circumstances, a dismissal of this case on the ground of forum non conveniens would deny thе plaintiff its day in court. The Restatement of the Law (Second), Conflict of Laws, speaks directly to this point at Section 84 (c; (2):
[T]he suit will be entertained, no mattеr how inappropriate the forum may be, if the defendant cannot be *1032 subjеcted to jurisdiction in other states. The same will be true if the plaintiff’s cause of action would elsewhere be barred by the statute of limitations, unless the cоurt is willing to accept the defendant’s stipulation that he will not raise this defensе in the second state.
The defendant raises the point that a related сase, Iberian Tankers Co. v. Terminates Maracaibo,
Motion denied. So ordered.