764 F. Supp. 69 | E.D. La. | 1991
ORDER AND REASONS
Before the Court is the motion of Intercontinental Shipping Party, Ltd. to vacate writ of attachment and/or alternatively, to dismiss on the grounds of forum non con-veniens. After reviewing the motion, mem-oranda of counsel, the record and the law, the Court grants the motion to dismiss on the grounds of forum non conveniens and denies the motion to vacate the writ of attachment as moot.
INTRODUCTION
Claimant Intercontinental Shipping Party, Ltd. (“ICS”) is claiming to make a restricted appearance in this matter pursuant to Supplemental Rule E(8) of the Supplemental Rules for Certain Admiralty and Maritime Claims. ICS moves this Court to vacate the writ of attachment levied against the marine diesel oil and heavy fuel oil on board the M/V GOLDEN HOPE. The heart of this case, however, involves whether Mariner Shipping Party, Ltd. (“Mariner”) validly transferred ownership of the fuel oil bunkers as part of a sub-time charter to ICS.
Mariner time chartered the M/V GOLDEN HOPE from her true owners, Castello Marine Co., Ltd. of Cyprus by charter party dated May 11, 1990. Contemporary documents show that on August 8, 1990, Mariner entered into a voyage charter with Intermare Transport GmbH (“Inter-mare/Hamburg”) for one voyage of the GOLDEN HOPE from New Orleans to Ireland. On August 10, 1990, Great Prize, S.A. (“Great Prize”) filed its Verified Complaint seeking to obtain security for $158,-113.71 allegedly owed to it by Mariner under the terms of a charter party on another vessel. Great Prize then obtained a Rule B(l) writ of attachment for bunkers on-board the GOLDEN HOPE valued at approximately $91,000. On August 11, 1990, at approximately 1630 hours, the bunkers were seized by the U.S. Marshal while the vessel lay at anchor in the lower Mississippi River. On August 13, 1990, the Court permitted the vessel to move to the ADM buoy berth at Mile 124 AHP of the Mississippi River in order to load a cargo of corn gluten feed pellets for carriage to Ireland. On August 14, 1990, ICS, as claimant of the bunkers in question, moved the Court to dissolve the writ of attachment. The Court denied the motion on August 15,
FACTS
In early August 1990, Mariner, an Australian entity of which ICS is a 50% shareholder, was experiencing financial difficulties. In fact, according to Great Prize, Mariner had not been making its charter hire payments to Great Prize for some months previous. ICS claims that in order for Mariner to meet its hire obligations arising from a NYPE Form Time Charter Party of the GOLDEN HOPE, Mariner sub-time chartered the vessel on August 10, 1990 to ICS on “back-to-back” terms
Plaintiff. Great Prize argues that the transaction described above was concocted after the bunkers were seized. Great Prize notes that the time charter was a verbal agreement entered into by ICS and Mariner on August 9, 1990.
ANALYSIS
A defendant
As noted previously, both ICS and Mariner are Australian entities, and thus amenable to an Australian forum. Furthermore, the public factors weigh in favor of dismissal. The events leading up to this controversy occurred primarily in Australia. The only connection this controversy has with the United States is that the vessel’s bunkers were seized while here, and that the complaint was filed upon the arrival of the vessel in the Eastern District of Louisiana. Furthermore, the underlying dispute between Great Prize and Mariner for unpaid charter hire on the M/V GREAT PRIZE does not have a nexus with the United States. Indeed, both the relationship between ICS and Mariner under the sub-time charter and the relationship between Great Prize and Mariner concerning the missed charter hire payments under their charter party involve English law and are likely subject to arbitration in London. As such, the Court finds that there is little or no public interest in this dispute, especially inasmuch as foreign law will likely predominate if jurisdiction is retained. In re Air Crash Disaster Near New Orleans, 821 F.2d at 1166 (citation omitted). Further, the Court finds that from all the documents and conflicting affidavits submitted in this matter, retaining the case would immerse the Court in “untangling] problems in ... law foreign to itself.” Piper Aircraft Co., 454 U.S. at 251, 102 S.Ct. at 2.
The private interests also weigh in favor of dismissal:
The factors to be considered in evaluating the private interests involved include the relative ease of access to sources of proof, the availability of compulsory process, the cost of obtaining attendance of willing witnesses, the enforceability of a judgment if one is obtained, and practical considerations concerning the administration of trial.
In the interest of justice, the Court must, however, make this dismissal conditional. And, both conditions the Court sets have been specifically sanctioned by the Fifth Circuit. Id. at 1453. First, ICS and Mari-
Factual issues remain to be determined, namely whether Mariner validly transferred ownership of the GOLDEN HOPE’S bunkers to ICS. Additionally, Mariner is now in receivership in Australia, further implicating the necessity for Australian courts to hear and resolve this conflict. And, once the Australian courts determine whether there was a valid charter party agreement between ICS and Mariner, the initial dispute between Mariner and Great Prize over charter hire payments on the M/V GREAT PRIZE, involving whether the parties must submit to arbitration in London, will be more readily determinable. ner must by formal agreement submit to the jurisdiction of the Australian courts and waive any applicable statute of limitations defense. In this regard, the Court notes that Great Prize has not indicated it cannot pursue its claims against Mariner or ICS in the Australian courts, or that it will in any way be treated unfairly by the Australian courts.
Once these conditions have been fulfilled, ICS and/or Intermare/Hamburg may move this Court for disposition of the $91,000 security posted on behalf of ICS.
Accordingly,
IT IS ORDERED that this case is DISMISSED WITHOUT PREJUDICE under the conditions noted in the opinion contained herewith, each party to bear its own costs.
ORDER OF AMENDMENT
Before the Court are two motions: (1) plaintiff’s motion to alter or amend judgment; and (2) Intercontinental Shipping Party’s motion to amend the Order and Reasons entered by this Court on April 4, 1991. After reviewing the motions, memo-randa of counsel, the record and the law,
With respect to Intercontinental’s motion to amend, Intercontinental urges: (1) that the Court set a time limit within which Great Prize must bring its claim in an Australian court; and (2) that the Court limit any judgment that Intercontinental and/or Mariner must satisfy in an Australian court to $91,000, the security posted for the value of the bunkers. The Court believes the first requested amendment has merit, especially since the original Order also requires Intercontinental and Mariner to waive any applicable statute of limitations defenses. The second requested amendment is unnecessary. The issue in this case is who owned the bunkers on board the M/V GOLDEN HOPE when they were seized. Therefore, the Court’s original Order already implicitly requires Intercontinental and/or Mariner to satisfy any judgment, but only regarding ownership of the bunkers. That amount has already been acknowledged by the plaintiff to be $91,000, the amount posted for security. Therefore, we will not limit the amount of any judgment Mariner must satisfy since other matters pending between Mariner and Great Prize are in arbitration in London.
Accordingly,
IT IS ORDERED that Great Prize’s motion to amend judgment is DENIED.
IT IS FURTHER ORDERED that Intercontinental’s motion to amend the Order and Reasons of April 4, 1991 is GRANTED consistent with the opinions stated herein, and the Court’s Order and Reasons entered April 4, 1991 is hereby amended to reflect that Great Prize must institute any such action in an Australian forum against Mariner and/or Intercontinental not later than November 21, 1991.
IT IS FURTHER ORDERED that the hearing set in this matter for May 22, 1991 is CANCELED.
. The other dispute in this case between plaintiff, Great Prize, S.A., and Mariner concerns charter hire plaintiff alleges is due from Mariner on another vessel, the M/V GREAT PRIZE, working in the Far East. This claim is arguably subject to English law and arbitration in London.
. The Court denied the motion to vacate the Writ of Attachment, at least initially, because the copy of the sub-time charter between ICS and Mariner provided to the Court at the hearing was illegible. At a subsequent hearing ICS provided more legible copies.
. The Court noted during the hearing that there appeared to be substantial facts in controversy regarding whether the sub-time charter between Mariner and ICS was devised for the purpose of avoiding the seizure of the bunkers in question. At the hearing, Great Prize re-emphasized that 50% of Mariner's stock was owned by ICS and that these two corporations shared some common directors. In denying the motion to vacate, the Court acknowledged that discovery needed to be taken with respect to the relationship between Mariner and ICS during the time period in question, as well as on the transaction itself, since the documents were unclear as to exactly when the sub-time charter was executed.
. "Back-to-back” as used by ICS means that the time charter party between ICS and Mariner was memorialized on the same New York Produce Exchange Time Charter form as that of the head time charter between Mariner and the vessel’s head owner.
. Additionally, ICS claims that Mariner agreed to credit ICS for the value of bunkers taken over by ICS against payment due from Mariner for the value of bunkers expected to be on board when the GOLDEN HOPE was redelivered to Mariner at the end of the voyage to Ireland. See Confidential Addendum No. 1 (ICS Exhibits D, E, and I attached to their motion). ICS also claims that pursuant to the terms of Confidential Addendum No. 1, ICS instructed its bank, Hong Kong Bank of Australia, Ltd., to transfer $72,714.95 to the account of the head owners for the next 15 days of charter hire owed on the GOLDEN HOPE.
. However, ICS acknowledges that this agency relationship was not disclosed to either the crew or Intermare/Hamburg’s local husbanding agents, deeming such disclosure "unnecessary" and "superfluous."
. At the August 15, 1990 hearing ICS produced no evidence of the time charter agreement other than an unsigned and illegible copy of a charter party form.
. The Court finds that for purposes of the present motion, ICS is a "defendant” and may urge the doctrine of forum non conveniens because it is a "person claiming an interest" in the bunkers. See note 12, infra.
. See also Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 508, 67 S.Ct. 839, 843, 91 L.Ed. 1055 (1947) (the balance of public and private interests must weigh in favor of the defendant).
. The Reyno court noted that the strong presumption which favors a plaintiffs choice of forum applies with less force when the plaintiff is foreign. Piper Aircraft Co. v. Reyno, 454 U.S. 235, 255-56, 102 S.Ct. 252, 265-66, 70 L.Ed.2d 419 (1981).
. There is really no dispute over timing in the present motion. This case is still at a very early stage. Indeed, as noted elsewhere in this opinion, ICS is not even a party to the case yet.
.The Court realizes that ICS is not presently a party to this suit. ICS claims it is making a limited appearance pursuant to Supplemental Rule E(8) in order to assert its ownership rights to the GOLDEN HOPE'S bunkers. Great Prize maintains that this is improper in view of the fact that ICS has not intervened, and is not a party. Great Prize has offered no specific authority for the proposition that ICS must be a party in order to "defend against an admiralty and maritime claim." However, the Court finds that regardless of the availability of Rule E(8), ICS may properly bring its motion to vacate the writ of attachment and/or to dismiss on the grounds of forum non conveniens before the Court pursuant to Rule E(4)(f), which states in pertinent part:
Whenever property is arrested or attached, any person claiming an interest in it shall be entitled to a prompt hearing at which the plaintiff shall be required to show why the arrest or attachment should not be vacated or other relief granted consistent with these rules.
. It is undesirable for such cases to be tried on depositions and affidavits, which is quite likely how the present case would have to be tried should this Court retain it. Perez & Compania (Cataluna), S.A v. M/V MEXICO I, 826 F.2d 1449, 1453 (5th Cir.1987) (citing Gulf Oil Corp., 330 U.S. at 511, 67 S.Ct. at 844).
. The Court therefore finds that the Australian forum is both available to the parties and adequate in terms of remedies. See In re Air Crash Disaster Near New Orleans, 821 F.2d at 1165.
. The Court has also reviewed the full five-page "Hustwith/Cadwallader Memo.” Three pages of this memo were already produced by ICS. The Magistrate ordered the other two pages to be produced to the Court in camera, and those pages were produced to the Court this date. Plaintiff has persistently maintained that ICS’s unwillingness to produce the full text of this document is a strong indication that the document would support plaintiffs contention that the sub-time charter party in question was concocted after the seizure of the bunkers on board the M/V GOLDEN HOPE. After review, we find that the document does not contain any information which could be considered relevant to the issue before the Court — ownership of the bunkers on board the M/V GOLDEN HOPE. Accordingly, the Court does not believe it would serve any useful purpose to require ICS to produce these two pages to plaintiff.
. On April 11, 1991, an arbitration panel in London directed that Mariner pay to Great Prize $293,522.30 plus interest at 10% per annum from September 1, 1990 until April 11, 1991 on their claim regarding a charter hire dispute on the M/V GREAT PRIZE. This dispute, however, does not involve the question of ownership of the bunkers on board the M/V GOLDEN HOPE.