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VIDOVIC v. LOSINJSKA PLOVIDBA OOUR BROADARSTVO

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA


July 14, 1994

SLAVKO VIDOVIC
v.
LOSINJSKA PLOVIDBA OOUR BROADARSTVO; ISLAND SHIPPING, S.A.; COOL WIND NAVIGATION, INC.; and M/V ZAMET

The opinion of the court was delivered by: JOHN R. PADOVA

MEMORANDUM

 Padova, J.

 In this case, a foreign seaman injured in the course of his employment aboard a vessel sued the foreign owners of that vessel for penalty wages, maintenance and cure, and damages arising from his personal injuries. The shipowners have now moved to dismiss under the doctrine of forum non conveniens. For the following reasons, I will deny the motion.

 The following facts are essentially undisputed. The various independent republics that formerly comprised the nation of Yugoslavia are in the midst of a civil war. Defendant Losinjska Plovidba Oour Broadarstvo ("Losinjska") is a Croatian corporation that is owned and controlled in substantial part by the Republic of Croatia and, therefore, is an instrumentality of the Republic of Croatia. Defendants Losinjska, Island Shipping, S.A., and Cool Wind Navigation, Inc. are Croatian corporations that own, operate, possess, manage, and control the M/V Zamet (the "Vessel"). The Vessel is registered in Panama, engages in foreign commerce, and regularly calls at ports in the United States.

  On November 29, 1992 in San Juan, Puerto Rico, plaintiff Slavko Vidovic, a merchant seaman, who was born in Ljubjana, Slovenia and last resided in Sarajevo, Bosnia, *fn1" signed articles of engagement and joined the Vessel as an employee. After suffering an injury while the Vessel was docked in the Port of Chester, Pennsylvania and allegedly being deprived of his wages, Vidovic filed a complaint in which he alleged claims for: (1) his personal injuries (count I); (2) maintenance, cure, earned wages, and unearned wages (count II); and (3) penalty wages (count III).

 On January 14, 1994, defendants moved to dismiss the complaint for lack of subject matter jurisdiction pursuant to Federal Rule of Civil Procedure 12(b)(1). By Memorandum and Order dated March 1, 1994, I denied the motion, finding subject matter jurisdiction over the penalty wage claim and supplemental jurisdiction over the remainder of Vidovic's claims. See Vidovic v. Losinjska Plovidba Oour Broadarstvo, No. 93-3887, slip op. at 8 (E.D. Pa. Mar. 1, 1994). *fn2" In the written Memorandum, I expressly refused to analyze the forum non conveniens arguments at that time because Vidovic had not yet had the opportunity to conduct discovery with respect to the issues relevant to the doctrine of forum non conveniens. See id. at 8 n.8. After sufficient time for discovery, defendants again move to dismiss under the doctrine of forum non conveniens.

 The doctrine of forum non conveniens permits a court to dismiss a case despite the existence of jurisdiction because of consideration for the interests of the litigants and in the interest of justice. See Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 507, 91 L. Ed. 1055, 67 S. Ct. 839 (1947). Under the doctrine of forum non conveniens, the district court must retain flexibility, and each case turns on its particular facts. See Piper Aircraft Co. v. Reyno, 454 U.S. 235, 249-50, 70 L. Ed. 2d 419, 102 S. Ct. 252 (1981). Under the doctrine, a district court may in the exercise of its sound discretion, dismiss a case "'when the alternative forum has jurisdiction to hear the case, and when trial in the chosen forum would establish . . . oppressiveness and vexation to defendant . . . out of all proportion to plaintiff's convenience, or when the chosen forum is inappropriate because of considerations affecting the court's own administrative and legal problems.'" See Lacey v. Cessna Aircraft Co., 862 F.2d 38, 42 (3d Cir. 1988)(Lacey I)(citations omitted). In deciding whether to dismiss a case under the doctrine of forum non conveniens, the ultimate inquiry is "where trial will best serve the convenience of the parties and the ends of justice." See id. (citation omitted).

 The defendant bears the burden of persuasion as to all elements of the forum non conveniens analysis. See Lacey v. Cessna Aircraft Co., 932 F.2d 170, 180 (3d Cir. 1991)(Lacey II). This burden comprises two essential elements. The moving party must show that: (1) an adequate, alternative forum exists as to all parties; and (2) the private and public interest factors weigh heavily on the side of dismissal. *fn3" See id.

  The requirement of an adequate, alternative forum is satisfied when: (a) the defendant is amenable to process in the other jurisdiction; and (b) the remedy available in the alternative forum is clearly satisfactory. See id. Here, defendants seek dismissal of this action in favor of litigation proceeding in Croatia. It is undisputed that defendants are amenable to process in Croatia.

 With respect to the adequacy of the remedy available in Croatia, defendants have submitted a letter from Josip Kardum, the Deputy Minister of Justice of the Republic of Croatia. That letter, translated into English, states as follows:

 

Regarding your demand in connection with safety and stability of legal proceedings before the courts of Republic of Croatia we inform you as follows:

 

From the very beginning of the aggression on the Republic of Croatia in 1991 up to now[,] the courts in the Republic of Croatia have not interrupted with work. In that period all the courts were working continually and all parties could obtain legal protection. The same is with the courts in the UNPA zones which continued with work in other cities out of their seats.

 

According to above, we can certify that there are neither legal nor factual reasons which could prevent functioning of the courts of Rijeka or Split and parties to obtain their rights.

 Letter from Josip Kardum, Deputy Minister, the Ministry of Justice of the Republic of Croatia, to Losinjska Plovidba of Sept. 20, 1993. Defendants have also submitted a letter from Dr. Kresimir Pirsl, a Counselor at the Croatian Embassy in Washington, D.C. In this letter, Mr. Pirsl states as follows:

 

We hereby confirm that the Courts of the Republic of Croatia are open and have been handling cases involving disputes under the laws of the Republic of Croatia at all times. Their work has been continuous, before and after the proclamation of the independence of the Republic of Croatia on October 8, 1991. Both Croatian citizens, and foreign citizens who have civil law disputes with Croatian citizens, were and are able to pursue their legal remedies before the Courts of the Republic of Croatia.

 

The above applies to the Courts on the territory that is under the control of the Croatian Government, which at all times included the cities and municipalities of Rijeka and Split.

 Letter from Dr. Kresimir, Counselor, Embassy of the Republic of Croatia in Washington, D.C., to Palmer, Biezup & Henderson of May 2, 1994. Finally, defendants have submitted the affidavit of Dubravko Kovacec, a private attorney who practices law in the Republic of Croatia. In the affidavit, Mr. Kovacec states that the legal system in the Republic of Croatia is "independent in every respect and there exists full separation between the executive, legislative, and judicial authorities." Dubravko Kovacec Aff. P 2.

 Vidovic also has submitted information relating to the adequacy of the legal remedy available to him in Croatia. First, Vidovic has submitted a letter from twelve members of the United States House of Representatives to President Clinton. In the letter, the Representatives state that the President of the Republic of Croatia forced the former head of the Croatian Supreme Court to resign because that judge dismissed charges brought against leaders of a political party in opposition to the party that is led by the President of the Republic of Croatia. See Letter from Reps. Traficant, Hefley, Stokes, Fazio, Gutierrez, Henry, Dellums, Berman, Towns, Gilman, Frost, and Schroeder to President Clinton of May 13, 1993, at 2. Vidovic has also pointed to certain remarks made on the record by Rep. Traficant. In his remarks, Rep. Traficant again makes note of the fact that the head of the Croatian Supreme Court was dismissed because of his ruling dismissing criminal charges against an opposition leader. See 139 Cong. Rec. E1883 (daily ed. July 27, 1993)(statement of Rep. Traficant). Rep. Traficant then read into the record several relevant materials for consideration by the House of Representatives. Included in these materials was a statement from The Muslim Parliament of Great Britain, which stated that "the judicial system of Croatia can be and is being turned to use for the partisan interests of the Government, and that a fair trial is not something that people can expect in Croatia if they disagree with the Government." See id. (letter from Ira Straus, Executive Director, The Muslim Parliament of Great Britain, to Franjo Tudjman, President of the Republic of Croatia of Apr. 14, 1993).

 In this case, Vidovic, a foreign citizen who is not Croatian, is suing, among others, an instrumentality of the Republic of Croatia. See Complaint P 2; Answer P 2 (admitting that Losinjska is owned and controlled in substantial part by the government of the Republic of Croatia). Defendants' submissions establish that the courts of the Republic of Croatia are functioning during the civil war. They do not controvert plaintiffs' submissions, which set forth evidence that the courts of the Republic of Croatia may be biased in favor of the government. The statement by a single attorney in Croatia attesting to the independence of Croatia's judiciary does not carry defendants' burden of persuasion when countered by evidence from the United States Representatives and the Muslim Parliament of Great Britain. Therefore, I conclude that defendants have not carried their burden with respect to the adequacy of the remedy available in Croatia in a suit by a non-Croatian citizen against an instrumentality of the government of the Republic of Croatia, and cannot establish the existence of an adequate, alternative forum for all parties. Accordingly, I need not reach the second prong of the forum non conveniens analysis, which requires weighing the various private and public interest factors, and I will deny defendants' motion.

 An appropriate Order follows.

 ORDER

 AND NOW, this 14th day of July, 1994, upon consideration of defendants' motion to dismiss (docket entry no. 28) and all papers filed in support thereof and in opposition thereto, IT IS ORDERED that said motion is DENIED.

 BY THE COURT:

 JOHN R. PADOVA, J.


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