recollection that the vessel ran aground and anyone aboard was injured. Other crew members seem to be unaware that the tow of the vessel ran aground or hit the bank of the canal, and those who were, minimize the force of the occurrence. Vincent K. Davis, an engineer who boarded the vessel after the alleged accident, discussed with the plaintiff a prior motor vehicle accident in which the plaintiff was involved and received back injuries. Davis also observed plaintiff's capacity to work following the alleged accident on the vessel. Davis resides in Augusta, Kentucky, 115 miles from Catlettsburg and 335 miles from Pittsburgh according to Gray's affidavit.
The defendant expects the chief relief engineer, Norvell Grant, to testify that plaintiff minimized the injury to his back, and refused to get off the vessel at Baton Rouge, Louisiana to see a doctor even though Mr. Grant offered to work in his place for the remainder of the voyage. Mr. Grant, also one of the crew members, is expected to testify that the force of running aground was so slight that it failed to wake him up.
The crew members and the doctors would not be subject to compulsory process in Pittsburgh, whereas four crew members and five of the seven doctors would be subject to compulsory process in Catlettsburg.
The M/V Tri-State much more frequently plies the waters in and about Ashland than Pittsburgh. See the affidavit of Zane G. Meek.
It seems obvious that the expense of a trial in Pittsburgh would be considerably more than the expense of a trial in Catlettsburg, although defendant has failed to estimate the costs of maintenance and transportation for its crew and medical witnesses if the trial were held in Pittsburgh as compared to such costs in Catlettsburg.
Moreover, if the members of the crew, or some of them, are still working on the river for the defendant, it would seem likely that even those who reside beyond 100 miles of Catlettsburg may be subject to service of process or may be assigned to the M/V Tri-State by the defendant while in dock at Ashland during the trial.
The plaintiff filed an affidavit that the vessel and her tow "hit hard against the bank or canal wall" throwing him against a metal tank injuring his back. He avers he mentioned his accident only to Captain Glasscock and John Daulton, but on the contrary, crew members Davis and Grant state affirmatively that plaintiff discussed his back injuries with each of them, and crew member Charles H. English, who lives in Ashland, states that plaintiff told him he reinjured his back while lifting something in the engine room.
Plaintiff states that he lives at Wheelersburg, Ohio with his wife, and although permanently disabled, is presently working for the Second Marine Corp., Cincinnati, Ohio, on the M/V White Gold, navigating the Ohio River between Cairo, Illinois and Pittsburgh. In our opinion, this employment does not create a nexus with this district offsetting the factors favoring a transfer.
A hearing was held at which counsel for each party presented arguments pro and con. No testimony was offered. Briefs were submitted by each party. Neither party ordered a transcript of the argument.
The plaintiff's choice of forum is a paramount consideration in any determination of a transfer request, and his choice should not be lightly disturbed. Shutte v. Armco Steel Corporation, 431 F.2d 22 (3rd Cir. 1970). In All States Freight v. Modarelli, 196 F.2d 1010, 1011 (3rd Cir. 1952) it is stated:
"the statute limits the privilege of the plaintiff to have his lawsuit tried in the forum of his choosing . . . . The purpose of the limitation is clearly to make the inevitably uncomfortable (for the litigant) judicial process cheaper and more convenient and, if possible, more prompt."