Great Prize, S.A. v. Mariner Shipping Pty., Ltd.

Citations: 764 F. Supp. 69; 1991 A.M.C. 2156; 1991 U.S. Dist. LEXIS 4241; 1991 WL 87624Docket: Civ. A. No. 90-2900

Court: District Court, E.D. Louisiana; April 1, 1991; Federal District Court

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The Court grants Intercontinental Shipping Party, Ltd. (ICS) the motion to dismiss based on forum non conveniens and denies as moot the motion to vacate the writ of attachment on marine diesel oil and heavy fuel oil aboard the M/V GOLDEN HOPE. ICS, claiming a restricted appearance under Supplemental Rule E(8), sought to vacate the writ, which was issued following a complaint by Great Prize, S.A. for $158,113.71 owed by Mariner Shipping Party, Ltd. (Mariner). The writ, valued at approximately $91,000, resulted in the U.S. Marshal seizing the oil on August 11, 1990. 

The case's crux centers on whether Mariner validly transferred ownership of the fuel oil to ICS through a sub-time charter. The Court finds that the issues would be better resolved in another jurisdiction. Mariner chartered the M/V GOLDEN HOPE from Castello Marine Co. Ltd. and subsequently entered a voyage charter with Intermare Transport GmbH. Financial distress led Mariner to sub-time charter the vessel to ICS on August 10, 1990, and claim an assignment of the voyage charter. ICS asserts that all relevant agreements were in place before the seizure of the bunkers and provides documentation of these arrangements. Mariner has since entered receivership in Australia.

Great Prize contends that a transaction involving the seizure of bunkers was arranged after the event, questioning the legitimacy of a verbal time charter agreement made between ICS and Mariner on August 9, 1990. The plaintiff highlights that even four days post-seizure, Mariner was still functioning as the time charterer of the vessel GOLDEN HOPE, with no sub-time charter information available to its local agent as of August 15, 1990. Great Prize asserts that ICS, as a creditor of Mariner, has a vested interest in maintaining Mariner's assets. Procedurally, Great Prize argues that ICS lacks the right to claim ownership of the bunkers under Supplemental Rule E(8) without intervening in the case, which it has yet to do.

In terms of the doctrine of forum non conveniens, the moving defendant must demonstrate the existence of an adequate foreign forum for all defendants and prove that private and public interests strongly favor trial in that forum. The court recognizes that both ICS and Mariner are Australian entities, making them subject to an Australian forum. The case's public factors favor dismissal, as the events primarily occurred in Australia, with only minimal ties to the United States due to the vessel's bunkers being seized there and the complaint being filed upon the vessel's arrival in Louisiana. The underlying disputes, involving English law and potential arbitration in London, further diminish the U.S. jurisdiction's relevance. 

The court finds that maintaining the case would require navigating complex foreign legal issues. Additionally, the private interests favor dismissal, as all parties are foreign, and any agreement regarding the sub-time charter occurred in Australia. Relevant witnesses and evidence are primarily located in Australia or Europe, and many witnesses cannot be compelled to appear in a U.S. court.

The Court has conditionally dismissed the case without prejudice, imposing two specific requirements sanctioned by the Fifth Circuit. Firstly, ICS and Mariner must formally agree to submit to the jurisdiction of Australian courts and waive any statute of limitations defenses. The Court notes that Great Prize has not indicated any inability to pursue its claims in Australia or that it would face unfair treatment there. Secondly, ICS and Mariner must agree to satisfy any final judgment rendered by a court with proper jurisdiction. Should they fail to satisfy any judgment or obstruct the action in Australia, the plaintiff may return to this forum. Upon fulfilling these conditions, ICS or Intermare/Hamburg may request the return of the $91,000 security posted on behalf of ICS.

Additionally, the Court reviewed two motions: Great Prize’s motion to alter or amend the judgment and Intercontinental Shipping Party’s motion to amend the previous Order. The Court denied Great Prize’s motion, which it regarded as a reconsideration request, emphasizing that the original dismissal on forum non conveniens grounds was appropriate and preserved Great Prize’s rights to pursue remedies in a more convenient forum. The Court partially granted Intercontinental’s motion, agreeing to set a deadline for Great Prize to bring its claim in Australia by November 21, 1991, but denied the request to limit any judgment against Intercontinental and/or Mariner to $91,000, as the original Order already implicitly required them to satisfy any judgment regarding the ownership of the seized bunkers without specific monetary limitation.

The hearing scheduled for May 22, 1991, has been canceled. The ongoing dispute involves Great Prize, S.A. and Mariner concerning charter hire allegedly owed by Mariner for the M/V GREAT PRIZE, with potential applicability of English law and arbitration in London. The Court initially denied Mariner's motion to vacate the Writ of Attachment due to an illegible copy of the sub-time charter provided by ICS. A later hearing revealed clearer copies, and substantial factual controversies emerged regarding the sub-time charter’s purpose, particularly its relationship with ICS, which owns 50% of Mariner’s stock and shares directors with it.

The Court recognized the necessity for discovery concerning Mariner and ICS's relationship and the timeline of the charter agreement. ICS defined "back-to-back" charters as those documented on the same New York Produce Exchange Time Charter form. ICS also claimed an agreement with Mariner to credit it for bunker values and indicated a bank transfer of $72,714.95 for charter hire owed, although this agency relationship was not disclosed to relevant parties, which ICS deemed unnecessary.

At a prior hearing, ICS had provided no substantial evidence of the time charter agreement aside from an illegible document. For the purposes of the motion, ICS is regarded as a "defendant" entitled to invoke the doctrine of forum non conveniens due to its claimed interest in the bunkers. The Court noted that the presumption favoring a plaintiff's choice of forum is weaker when the plaintiff is foreign. The case remains in its early stages, and ICS, not yet a party, claims limited appearance under Supplemental Rule E(8) to assert ownership rights over the GOLDEN HOPE's bunkers. Great Prize contends this is improper as ICS has not intervened. However, the Court concludes ICS may properly move to vacate the writ of attachment or dismiss based on forum non conveniens under Rule E(4)(f), allowing any claimant of interest in the attached property a prompt hearing.

Trial by depositions and affidavits is deemed undesirable for the current case, suggesting that if the Court retains jurisdiction, it may proceed under such conditions. The Court finds that the Australian forum provides both availability and adequacy in terms of remedies for the parties involved. The 'Hustwith/Cadwallader Memo,' reviewed by the Court, includes five pages, three of which were previously provided by ICS. The Magistrate ordered the remaining two pages to be submitted in camera, which were delivered on the date of the review. The plaintiff argues that ICS's failure to produce the full memo suggests it would substantiate the claim that the sub-time charter party was created post-seizure of the M/V GOLDEN HOPE’s bunkers. However, upon examination, the Court concludes that the memo does not contain pertinent information regarding the ownership of the bunkers on the M/V GOLDEN HOPE, and therefore, there is no necessity for ICS to disclose these two pages to the plaintiff. Additionally, an arbitration panel in London ruled on April 11, 1991, that Mariner must pay Great Prize $293,522.30 plus interest for a charter hire dispute related to the M/V GREAT PRIZE, which is unrelated to the ownership issue of the bunkers on the M/V GOLDEN HOPE.