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Cook v. Champion Shipping AS

August 4, 2010

THOMAS COOK, JASON K. ARNOLD, JACK L. DURHAM, JOHN M. HUNTER, III, LARZ A. STEWART, AND ELIZABETH H. ZEIGER PLAINTIFFS,
v.
CHAMPION SHIPPING AS AND CHAMPION TANKERS AS, DEFENDANTS.



The opinion of the court was delivered by: Frank C. Damrell, Jr. United States District Judge

MEMORANDUM AND ORDER

Plaintiffs Thomas Cook, Jason K. Arnold, Jack L. Durham, John M. Hunter, III, Larz A. Stewart, and Elizabeth H. Zeiger ("plaintiffs") bring this action in the United States District Court for the Eastern District of California against defendants Champion Shipping, AS, and Champion Tankers, AS, (collectively "defendants") seeking damages for injuries allegedly resulting from a collision in international waters off the coast of Taiwan between defendants' vessel M/V Champion Express ("Champion Express"), a shipping tanker registered in Liberia, and plaintiffs' vessel, the S/V Princess Taiping ("the Taiping"), a small, replica 15th century Chinese sailing vessel registered in Hong Kong and owned by Tmax Strategy & Marketing Limited. This matter is before the court on defendant Champion Shipping AS's motion to dismiss on the basis of forum non conveniens. Plaintiffs oppose the motion. For the reasons set forth below,*fn1 defendant's motion is GRANTED.*fn2

BACKGROUND

This action arises out of an alleged collision between the MV Champion Express and the Taiping that occurred in international waters off the coast of Taiwan on April 26, 2009 ("the Collision"). The Champion Express is a large, 609-foot chemical tanker owned by Champion Shipping and operated by Champion Tankers. The Taiping was a 53-foot wooden replica of a 15th century Chinese vessel commissioned by Taiwanese national Liu Ningsheng. The Taiping was nearing the completion of an extended voyage when the alleged collision occurred off the coast of Taiwan, destroying the vessel. (Def.'s Mot. to Dismiss, ("MTD"), filed Apr. 12, 2010, at 2.) Following the collision, the Taiping's crew members were rescued by the Taiwanese Air Force and Coast Guard, who transported them to Taiwan and issued a report on the incident. (Compl. ¶ 13; Decl. of George David Lamplough ("Lamplough Decl."), filed Apr. 12, 2010, ¶ 3.4.)

On August 28, 2009, Champion Shipping issued a Writ of Summons to initiate a limitation proceeding before the Admiralty Court of the Hong Kong Special Administrative Region Court of First Instance(the "Hong King Admiralty Court"). (MTD at 4; Lamplough Decl. ¶ 3.7.) By initiating the proceeding, the owners of Champion Express voluntarily submitted to that court's jurisdiction and consented to service of process in Hong Kong. (Lamplough Decl. ¶ 3.7.) Champion subsequently sent a copy of the Summons to plaintiffs, as well as Tmax, Taiping Master Liu Ning Sheng, and passenger Chao Hsiu Ying. Tmax, Sheng, and Ying, along with Taiping First Mate Yuquan Tang, filed acknowledgments of service in Hong Kong. (Id. at ¶ 3.9.) On September 24, 2009, Champion Shipping issued a Summons for a Limitation Decree, notice of which was sent to plaintiffs. (Id. at ¶ 3.10.) On November 10, 2009, the Hong Kong court issued a Limitation Decree, copies of which were sent to plaintiffs' attorneys in California. (Id. at ¶ 3.14.) Champion Shipping stipulated to an extension of time for plaintiffs to file claims in the Hong Kong action up to and including August 10, 2010 (Id. at 3.18), and have stipulated to further extension if necessary. (Id. at 4.35.)

Plaintiffs filed the present action on December 30, 2009, seeking to recover damages for physical and emotional injuries resulting from the collision.*fn3 This is one of two related actions arising out of the collision, both of which were brought by Taiping crew members. Two of the 6 plaintiffs in this action are California citizens. The remaining four plaintiffs are citizens of Hawaii. Both plaintiffs in the related action, Kinjo, et al. v. Champion Shipping AS, et al., No. 2:09-CV-03603-FCD DAD ("the Japanese action"), are Japanese citizens. The Champion Express S/V was crewed by 25 individuals at the time of the collision. (MTD at 3.) 24 crew members were citizens of India, and one was a citizen of Greece. (Id.) Plaintiffs obtained a Letter of Undertaking for this and the Japanese action in the amount of $10.5 million. (Decl. of John M. Toriello ("Toriello Decl."), filed Apr. 12, 2010, ¶ 4.) Champion agrees to amend the Letter of Undertaking in order to secure any judgment rendered by the Hong Kong Admiralty Court for both these plaintiffs and the plaintiffs in the Japanese action in the event the present action is dismissed by this court for forum non conveniens. (Id.)

ANALYSIS

Emphasizing the foreign jurisdiction agreements already existing between the owners of the Taiping and Champion Shipping as well as the fact that only two of the litigants in this action are residents of California, defendant moves to dismiss this action on the basis of forum non conveniens, arguing, "[i]t is clear that the central focus for this claim and all other claims related to [the collision] is Asia and the most convenient location to resolve these claims is in Hong Kong." (MTD at 6.) Plaintiffs respond that defendant cannot make a showing sufficient to overcome the presumption that their chosen forum is correct and should be respected.

A court has "the discretion to decline jurisdiction in a case where litigation in a foreign forum would be more convenient for the parties." Lueck v. Sundstrand Corp., 236 F.3d 1137, 1142 (9th Cir. 2001) (citing) Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 504 (1947). A party moving for dismissal on forum non conveniens grounds has the burden of showing: (1) whether an adequate alternative forum exists; and (2) whether the balance of private and public interest factors favors dismissal. Ceramic Corp. of America v. Inka Maritime Corp., 1 F.3d 947, 949 (9th Cir. 1993). There is a strong presumption to honor a plaintiff's choice of forum, but a court may balance that presumption against the "private interests" and "public interests" of litigating in a foreign country. Lueck, 236 F.3d at 1145. The Ninth Circuit considers the following "private interests" in its analysis:

(1) the residence of the parties and the witnesses;

(2) the forum's convenience to the litigants;

(3) access to physical evidence and other sources of proof;

(4) whether unwilling witnesses can be compelled to testify;

(5) the cost of bringing witnesses to trial;

(6) the enforceability of the judgment;*fn4 and

(7) all other practical problems that make trial of a case easy, ...


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