Issues about where to litigate: Russia or USA?

Federal District Court Opinions

SERGEY TARASEVICH v. EASTWIND TRANSPORT LTD., (S.D.N.Y.
2003) SERGEY TARASEVICH, Plaintiff, v. EASTWIND TRANSPORT
LTD., ERATIRA NAVIGATION CO. LTD., and MAYFLOWER
SHIPMANAGEMENT CORP., Defendants. 02 Civ. 1806 (JSM).
United States District Court, S.D. New York. July 18, 2003.

OPINION AND ORDER

JOHN MARTIN, District Judge

This action arises out of an accident aboard the M/V
Woodall. Plaintiff Sergey Tarasevich is a citizen and
resident of Kaliningrad, Russian Federation and was a third
assistant engineer aboard the M/V Woodall in the boiler
room on May 9, 2000 when the auxiliary gas boiler exploded
as the vessel was departing Montevideo, Uruguay.

The M/V Woodall is a Cypriot flag vessel, owned by Eratira
Navigation Co., Ltd., that was crewed exclusively by
Russian nationals. Tarasevich was hired by Mayflower
Shipmanagement Corp., the manager of the Woodall. Mayflower
is a Liberian corporation with principal offices in
Piraeus, Greece. E.A. Glyptis Decl. 1 2. Eastwind is a
Liberian corporation and maintains offices and a place of
business in New York City. James J. Murray Decl. 1 2.
Eastwind is the commercial management service to the
Woodall’s shipowner. Id.

On the day of the accident, the Woodall was departing
Uruguay, heading for fishing grounds off of the Falkland
Islands. During the departure, Plaintiff was standing watch
in the vessel’s engine room when the auxiliary gas boiler
exploded, causing extensive personal injuries to Plaintiff
which resulted in emergency medical treatment in Montevideo
and a year’s hospitalization, and continual follow-up care
in Kaliningrad, Russia.

In March 2002, Plaintiff filed this action. Currently
before the Court is Defendants’ motion to dismiss on forum
non conveniens grounds, arguing that Russia would be a
more appropriate forum in which to litigate this matter.
For the reasons stated below, Defendants’ motion to dismiss
the case is granted, subject to reinstatement should
Defendants fail to submit to jurisdiction in Russia or fail
to waive a statute of limitations defense.

Discussion

Dismissal of a case pursuant to the doctrine of forum non
conveniens is addressed to the broad discretion of the
district court. Scottish Air Int’l, Inc. v. British
Caledonian Group, PLC, 81 F.3d 1224, 1234 (2d Cir. 1996).
When assessing a motion for forum non conveniens, the Court
begins with the general proposition that plaintiff’s choice
of forum is entitled to deference, but the “degree of
deference given to a plaintiff’s forum choice varies with
the circumstances.” Iragorri v. United Tech. Corp., 274
F.3d 65, 71 (2d Cir. 2001). A court grants a strong
presumption in favor of plaintiff’s choice of forum, but
this presumption is weaker when the plaintiff is foreign.
Id.; see also Dattner v. Conagra Foods, Inc., No. 01 cv.
11297, 2003 WL 1740448, at *2-4 (S.D.N.Y. April 2, 2003).
As explained by the Second Circuit in Iragorri, the
deference accorded plaintiff’s choice of forum is based on
a sliding scale reflecting the assumed convenience of the
forum to the plaintiff:

The Supreme Court explained in Piper that the reason we
give deference to a plaintiff’s choice of her home forum
is because it is presumed to be convenient. . . . In
contrast, when a foreign plaintiff chooses a U.S. forum,
it “is much less reasonable” to presume that the choice
was made for convenience.

Iracorri, 274 F.3d at 71.

Nonetheless, “some weight must still be given to a foreign
plaintiff’s choice of forum.” Murray v. British Broad.
Corp., 81 F.3d 287, 290 (2d Cir. 1996).

To determine what level to give plaintiff’s choice of
forum, the Court must determine what is the “lawsuit’s bona
fide connection to the United States.” Iragorri, 274 F.3d
at 72. If there are efficiencies to be gained by trying the
case in the plaintiff’s choice of forum, like convenience
for the plaintiff, availability of witnesses, the
defendant’s amenability to suit, and the availability of
appropriate legal assistance, the plaintiff’s choice should
receive strong deference. Iragorri, 274 F.3d at 72. In this
case, there are few reasons for choosing New York, aside
from the possibility of a more favorable outcome. Except
for the ability to sue Eastwind in a forum where it does
business, any conveniences associated with a New York forum
are absent in this case. Plaintiff is seriously injured and
lives far from his chosen forum. Most of the crew and the
doctors that treated Plaintiff live in Russia. Finally,
Plaintiff’s lead counsel is a Russian attorney. Considering
these factors, deference to Plaintiff’s choice of forum
falls on the lesser end of the sliding scale.

The next step in the forum non conveniens analysis
involves application of the factors set out in Gulf Oil v.
Gilbert, 330 U.S. 501, 67 S.Ct. 839 (1947), Koster v.
Lumbermens Mut. Cas. Co., 330 U.S. 518, 67 S.Ct. 828
(1947), and Piper Aircraft Co. v. Reyno, 454 U.S. 235, 102
S.Ct. 252 (1981). As an initial matter, the Court must
determine whether an adequate alternative forum exists. If
so, the Court balances two sets of factors. The first set
of factors relates to the private interests or convenience
of the litigants and the second set relates to the public
interest. Iragorri, 274 F.2d at 74; Alfadda v. Fenn, 159
F.3d 41, 45-46 (2d Cir. 1998).

Is the Alternative Forum Adequate?

Defendants bear the burden of showing an adequate
alternative forum exists. Wiwa v. Royal Dutch Petroleum
Co., 226 F.3d 88, 100 (2d Cir. 2000). The Second Circuit
has held that a forum is generally adequate if the
defendant is subject to process in that forum. DiRienzo v.
Philip Serv. Corp., 232 F.3d 49, 57(2d Cir. 2000). An
agreement by the defendant to submit to the jurisdiction of
the foreign forum can generally satisfy this requirement.
Murray, 81 F.3d at 292.

Defendants argue that Plaintiff has an adequate
alternative forum because Defendants have tendered the
amount Plaintiff is entitled to under his Contract if he is
severely and permanently disabled from an injury aboard
ship. This is not the basis for this Court’s finding of an
adequate alternative forum. A forum is adequate when a
dispute may be litigated in an alternative forum. See
DiRienzo, 232 F.3d at 57 (emphasis added).

This Court’s determination that an alternative forum exists
is based on affidavits of Russian lawyers, Professor
Stanislav G. Kargopolov, Plaintiff’s expert, and Alexander
Balakirev, Defendants’ expert. Defendant’s expert states
that Defendants are subject to suit in Russia. While
Professor Kargopolov states that there are difficulties in
suing a non-Russian defendant, he concedes that if
Defendants accept jurisdiction in Russia, then Plaintiff
can litigate the dispute in the Russian courts. Def. Mem.
in Supp. at 7. Professor Kargopolov states that
“jurisdiction of the Russian Court will be on condition
that foreign defendant will voluntarily appear and stay
present at the hearing and all stages of the proceedings.”
Kargopolov Aff. § 5. It is this Court’s
understanding that Defendants have agreed to do just that
and a dismissal on the basis of forum non conveniens is
conditional upon Defendants agreement to submit themselves
to Russian jurisdiction for the purposes of resolving this
action and to waive any statute of limitations defenses.

Plaintiff’s counsel has submitted a translation of a
decision from a Russian Court which appears to dismiss an
admiralty action because the defendants are not Russian
nationals. The translated decision makes no mention of any
defendants who have consented to jurisdiction in a Russian
court and so is inapposite in the instant case.

Plaintiff’s counsel also argues that Russia is not
adequate because the Russian courts “cannot dispense the
due process and remedies that an American court can.”
Plaintiff’s Memo. in Opp’n, at 5. This, however, is not
grounds for finding an alternative forum inadequate. Piper
Aircraft Co., 454 U.S. at 247, 102 S.Ct. at 261; Alcoa S.S.
Co. v. M/V Nordic Regent, 654 F.2d 147, 159 (2d Cir. 1978)
(en banc) (“It is abundantly clear . . . that the prospect
of a lesser recovery does not justify refusing to dismiss
on the ground of forum non conveniens.”).

A forum is “adequate so long as it permits litigation of
the subject matter of the dispute, provides adequate
procedural safeguards and the remedy available in the
alternative forum is not so inadequate as to amount to no
remedy at all.” DiRienzo, 232 F.3d at 57 (citing Piper
Aircraft, 454 U.S. at 254-55 & n. 22, 102 S.Ct. 252.).
Plaintiffs have indicated that an award in Russian is not
likely to be as great as one in the United States, but have
not articulated ways in which a Russian remedy would be
akin to no remedy at all.

Private Interest Factors

After ascertaining the availability of an adequate,
alternative forum, the Court must judge how convenient
plaintiff’s forum would be to the litigants. These factors
are:

the relative 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; and all other practical
problems that make trial of a case easy, expeditions and
inexpensive.

Gilbert, 330 U.S. at 508, 67 S.Ct. 839.

None of the private interest factors in this case point to
any efficiencies to be gained by trying it in the United
States. Plaintiff points out that the burden of trying this
case in New York would be borne primarily by him because of
the difficulties in coming here, and notes that he is
willing to do so. What counsel fails to acknowledge,
however, is that the very fact that there are no practical
reasons for trying the case here indicates that Plaintiff’s
choice of this forum is primarily motivated by
forum-shopping reasons and not for convenience of the
Plaintiff. Although the burden may be greatest for the
Plaintiff, there is undoubtedly a burden on Defendants to
try a case in the United States when all the medical
witnesses and witnesses to the accident are in Russia.

Documents concerning the maintenance of the gas boiler are
stored in Mayflower’s offices in Piraeus, Greece. Murray
Decl. at § 10. Documents in Greek kept in Greece are
a neutral factor when determining a New York or Russian
forum. Neither party has mentioned the need to view the
ship or any difficulty doing that in Russia if need be.
Because the bulk of the evidence is in Russia and
Defendants have conceded their availability in the Russian
courts, the private interest factors clearly point to
Russia as the appropriate forum.

Public Interest Factors

The public interest factors relevant to the analysis go to
whether litigation will be “piled up in congested centers;”
whether “jury duty is a burden that ought not to be imposed
upon the people of a community which has no relation to
the litigation;” whether there is a “local interest in
having localized controversies decided at home,” and what
court will be best equipped to apply the relevant law.
Gilbert, 330 U.S. at 843, 67 S.Ct. at 508-09.

Again, the public interest factors indicate that this case
involving injury to a Russian seaman be tried in his home
country. Russia has the competing interests of protecting
her seaman and having her seaman be able to compete in the
global merchant marine. Russian courts have the greatest
interest in determining the appropriate balance.

The court administration interests are a neutral factor in
this case because there has been no evidence offered about
which courts are more congested. The action’s only
connection to this forum is that the ship is allegedly
owned by New York residents. Even this connection does not
carry much weight because the injury and treatment occurred
elsewhere.

Conclusion

Accordingly, Defendants’ forum non conveniens motion
should be granted and the case dismissed without prejudice
for reinstatement should Defendants fail to consent to suit
in Russia or fail to waive the statute of limitations
defense.

SO ORDERED.