‘FORUM NON CONVENIENS’ THWARTS COURT SHOPPING

American admiralty courts are often utilized as forums for resolving international shipping disputes. Generally these maritime litigations involve the United States or its citizens. If a court has jurisdiciton over the parties, the controversey may be tried.

Because shipping is multinational, these disputes often involve foreign interests and witnesses. A foreign admiralty court also may be called upon to resolve the same dispute. This phenomenon occurs because litigants are interested in having cases tried in forums with laws most favorable to them (forum shopping).

In the United States, forum shopping is discouraged by utilizing the doctrine of “forum non conveniens.” Black’s Law Dictionary defines forum non conveniens as “a doctrine patterned upon the right of the court in the exercise of its equitable powers to refuse the trial of cases . . .if it appears that for the conveniens of litigants and witnesses and the interests of justice, the actions should be instituted in another forum where the action might have been brought.”

In determining whether this discretionary doctrine is applied, the plaintiff’s forum choice is given greater weight. However, courts will perform a balancing test and weigh private and public interests affecting the convenience of the parties and the forum. The case may be dismissed if these factors tip strongly toward an alternate forum.

Private factors include: ease of access to proof, cost of producing witnesses and availability to compel their attendance, possibility of viewing locations, enforceability of a judgment and all other practical problems that make a trial easy, expeditious and inexpensive.

Public factors include: court administrative difficulties, crowded dockets, overburdening jury systems, local interests of having controversies decided at home, conflict of law problems, and the relationship of the forum to the events giving rise to the litigation.

In determining the relative convenience of witnesses in a forum dispute, the Southern District Court of New York in the recent S/S CTE RICIO case (91 Civ. 2820) took into consideration the realities of modern day air travel in rendering its decision. The S/S CTE RICIO case resulted from the sinking of a cargo feeder vessel on a voyage from Italy to Spain. The cargo was to have been transshipped at Spain to the United States on a containership. American cargo interest brought suit in New York and the defendant Spanish ocean carrier moved to dismiss on the ground of forum non conveniens.

The carrier conteded that the relevant facts pointed toward Spain as the convenient forum. The carrier’s witnesses were in Spain, the ship’s crew were located in Germany and Poland, the vessel’s builders and classification society were in Germany. Furthermore, the relevance of the U.S. witnesses was minimal because the cargo was not delivered.

Plaintiffs argued that none of the key witnesses resided in Spain. Furthermore, witnesses could fly more readily and inexpensively from Italy, Germany and Poland to New York than to Spain because intra-continental European flights were less frequent and more expensive than trans-Atlantic flights to New York. The defendant argued that it was patently absurd to contend that New York was more convenient than a European forum for European witnesses.

The court accepted the plainitffs’ argument and cited authority that a forum is not necessarily inconvenient because of its distance from pertinent parties or places if it is readily accessible in a few hours of air travel. It will often be quicker and less expensive to transfer a witness or a document then to transfer a law court.

It now appears that the locality of witnesses may not be of primary concern to admiralty courts when deciding forum non conveniens motions if adequate air transportation is available.

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