Opinion
February 17, 2000
MEMORANDUM
Defendant Sounion Maritime Co. ("Sounion") has filed a motion for summary judgment or, in the alternative, to dismiss and/or stay on the grounds of forum non conveniens. Defendant's motion will be treated as one to dismiss and will be granted.
I
Sounion, the owner of the M/V Loretta D ("Loretta D"), is a business entity organized and operating under the laws of Liberia. Oceanmaris Management, Inc. ("Oceanmaris"), which has business offices in both Liberia and Greece, is Sounion's representative in Greece and manages the Loretta D. On December 19, 1997, Oceanmaris and U.S. Express Lines ("USEL") entered into a time charter agreement concerning the Loretta D. Under the charter, USEL agreed that "all fuels necessary for the operation of the vessel during the duration of the charter shall be provided and paid for by [USEL,] and [USEL] would not suffer, or permit to be continued, any lien or encumbrance incurred by them or its agents." Def.'s Mot. to Quash Warrant Ex. B, Vitta Aff. at ¶ 3.
On December 28, 1997, USEL's operations manager contacted USEL's agent, George Venetos, in Piraeus, Greece about securing bunkers for the Loretta D, which, at that time, was proceeding in the eastern Mediterranean from Eregli, Turkey to Pazajes, Spain. The next day, Venetos, on behalf of USEL, and plaintiff Lion de Mer, S.A. ("Lion de Mer") negotiated a bunkering contract through a broker, Praxis Energy Agents, S.A. On December 30, 1997, through its physical supplier ENA Petroleum S.A., Lion de Mer provided 600 metric tons of fuel oil and eighty metric tons of gas oil to the vessel at the Greek port of Piraeus. USEL agreed to pay $67,300 for the bunkers. USEL has failed to make payment.
Lion de Mer is a bunker supplier organized under the laws of the British Virgin Islands. Lion de Mer's principal office is located in Tortola, British Virgin Islands, but it has representatives worldwide, including Greece.
USEL still exists, but it is now nonoperational.
On March 27, 1998, Lion de Mer filed an action in rem against the Loretta D in this court. Judge Legg issued a warrant of arrest upon which the U.S. Marshal took possession of the vessel. On April 1, 1998, Sounion filed a motion to quash the warrant of arrest and to dismiss the action. Judge Legg found that Lion de Mer failed to show entitlement to a maritime lien under applicable laws and granted Sounion's motion. See Lion de Mer S.A. v. M/V Loretta D, No. 98-921, 1998 WL 307077, at *4 (D.Md. Apr. 3, 1998). However, Judge Legg also granted the plaintiff leave to amend the complaint. See id.
Lion de Mer filed an amended complaint adding Sounion as an in personam defendant and the Master, Achilleas Theodorou, as a garnishee. Sounion then filed its motion for summary judgment or, in the alternative, to dismiss and/or stay on the grounds of forum non conveniens.
II.
Under the doctrine of forum non conveniens, a federal district judge may decline jurisdiction over a case if the forum is seriously inconvenient for a party and an alternative forum exists. See Piper Aircraft Co. v. Reyno, 454 U.S. 235 (1981);Gulf Oil Corp. v. Gilbert, 330 U.S. 501 (1947). There is a presumption that plaintiff's choice of forum is convenient. However, if the defendant moving for dismissal is able to establish the existence of an adequate alternative forum, the court must balance the public and private interests involved to determine whether dismissal is warranted. This analysis is applicable to all forum non conveniens motions, including in rem and in personam admiralty actions. See Cliffs-Neddrill Turnkey International-Oranjestad v. M/T Rich Duke, 734 F. Supp. 142, 145 (D. Del 1990).
Although there is a presumption in favor of retention of plaintiff's choice of forum, this presumption is weakened when, as here, the plaintiff is foreign. See Piper Aircraft Co., 454 U.S. at 255-56.
Sounion has submitted an affidavit from George Pologiorgis, a Greek attorney, stating that the courts in Greece would have jurisdiction over this action. Therefore, Sounion argues that there is an alternative forum available in Greece. Lion de Mer, on the other hand, maintains that a Greek court would be an inadequate forum for resolution of this matter. First, Lion de Mer objects on the grounds that any action brought now in Greece would be time barred by the Greek two-year statute of limitations. However, Pologiorgis has stated that the statute of limitations has been tolled by Lion de Mer filing an action in this court. Furthermore, Sounion has agreed to waive any statute of limitations defense that it may have against Lion de Mer.
Second, Lion de Mer claims that it will be prejudiced since it anticipates filing an appeal to the Fourth Circuit concerning any unfavorable judgment I render. Lion de Mer's contention is unfounded. Upon entry of this motion to dismiss, Lion de Mer will be in a position to appeal. There is no impediment preventing plaintiff's appeal of an adverse decision that I make. Lion de Mer also expresses concern about losing the $75,000 security posted by Sounion. This concern can easily be alleviated. Sounion has stated, and I can ensure, that the escrow fund will remain intact while the case is pending in Greece. I will simply make this grant of the motion to dismiss contingent upon the maintenance of this security.
Finally, Lion de Mer claims that there would be an inordinate delay in the case's resolution if it is moved to Greece. However, simply because "Greek courts may be backlogged to a greater degree than the American courts does not render a remedy there `clearly unsatisfactory.'" Petcor v. Mega Breeze, No. 91-1387, 1992 WL 245587, at *6 (N.D.N.Y. Sept. 16, 1992) (quotingPiper Aircraft Co., 454 U.S. at 254 n. 22). Also, since Sounion will still have a $75,000 bond posted, both parties will have an incentive to resolve this matter expeditiously. Therefore, I am comfortable concluding that Greece would provide an adequate alternative forum for litigating this case.
Lion de Mer contends that it would take from three to five years to resolve this case in Greece. Pologiorgis stated in his affidavit that a court decision could be rendered in two years after being filed.
Having found that Greece would provide an acceptable forum, I must weigh the private and public interests in resolving this case in Maryland. The private interests include 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; . . . and all other practical problems that make trial of a case easy, expeditious and inexpensive." Gilbert, 330 U.S. at 508. Clearly, the majority of witnesses reside in Greece. Lion de Mer, Oceanmaris, Praxis Energy Agents, G. Venetos Co., and ENA Petroleum all have offices or representatives operating in Greece. The disputed bunkering transaction occurred in Greece. Indeed, even the bunkering agreement's terms and conditions require that the courts of Piraeus, Greece have exclusive jurisdiction. All of these factors weigh strongly in favor of Greece being the proper forum. See Warn v. M/Y Maridome, 961 F. Supp. 1357, 1379 (S.D.Cal. 1997) (granting motion of forum non conveniens where "many of the witnesses and much of the documentary evidence will be found in Greece"); Petcor, 1992 WL 245587, at *3 (dismissing case as forum non conveniens where "[m]ost evidence pertaining to the central issue in this case — the conditions and terms of the installation contract — arise out of event which occurred in Greece"). Also, the courts in Greece would have the power to subpoena witnesses and documents that might be essential to this dispute.
Lion de Mer argues that these factors alone should not be determinative. Of course, this is true. Nevertheless, the significant burden that would be placed on Sounion in summoning witnesses and producing documents from Greece makes it evident that the private interest factors strongly favor dismissal.
In addition to the private factors, I must also consider public interest factors, such as:
administrative difficulties flowing from court congestion; the `local interest in having localized interests decided at home'; the interest in having the trial of a diversity case in a forum that is at home with the law that must govern the action; the avoidance of unnecessary problems in conflict of laws, or in the application of foreign law; and in the unfairness of burdening citizens in an unrelated forum with jury duty.Piper Aircraft Co., 454 U.S. at 241 n. 6 (quoting Gilbert, 330 U.S. at 509). Again, these factors weigh heavily in favor of dismissal. In a similar factual situation, Judge Garbis stated: "[t]here is no local interest in having this case resolved in Maryland and no reason for it to utilize the Court's resources since the sole reason for Maryland venue was mooted by the posting of security." Casco Marine Paints Coatings, Ltd. v. M/V Leon, No. 95-3242, 1996 WL 544232, at *3 (D.Md. June 20, 1996). Overall, Lion de Mer's claim has little, if anything, to do with Maryland. None of the parties here are Maryland residents or even United States citizens. See Ullah v. Canion Shipping Co., 589 F. Supp. 552, 559 (D.Md. 1984) (finding Greece the appropriate forum when the "United States has no substantial connection with this litigation other than the fortuitous event that the [vessel] was located in Baltimore"). Instead, the litigants are foreign corporations with significant contacts in Greece. Additionally, Greek contract law will likely govern this dispute whether tried here or in Greece. While it is not an insurmountable obstacle to apply the law of a foreign country, clearly, Greek judges are experts and will be more adroit in applying their own law. Therefore, I find that the public interest factors also compel dismissal.
Although the parties dispute whether Greek or Liberian law controls, this choice of law issue is better left to a court in Greece to decide.
Since there is an adequate alternative forum, and the private and public interest factors weigh decidedly in favor of dismissal, the defendant's motion to dismiss for forum non conveniens is granted. However, this grant of the motion to dismiss is conditioned upon Sounion maintaining the $75,000 in escrow and waiving any statute of limitations defense against Lion de Mer in Greece.
For these reasons, defendant Sounion's motion to dismiss on the grounds of forum non conveniens is granted. A separate order to that effect is being entered herewith.
ORDER
For the reasons stated in the memorandum entered herewith, it is, this 17th day of February, 2000ORDERED that
1. Defendant Sounion's motion to dismiss is granted on forum non conveniens grounds upon the following conditions: (1) Sounion will submit to the jurisdiction of the appropriate forum in Greece and accept service of process; (2) Sounion will waive any Greek statute of limitations defense against Lion de Mer; and (3) Sounion will maintain the $75,000 escrow account presently held by Allfirst Bank, Baltimore, Maryland for the benefit of Lion de Mer;
2. Defendant Sounion's motion for summary judgment is denied as moot.