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Bhatnagar v. Surrendra Overseas Ltd.

filed: April 17, 1995.

URVASHI BHATNAGAR, AN INFANT BY HER MOTHER AND NATURAL GUARDIAN, KAPLANA BHATNAGAR; KAPLANA BHATNAGAR, INDIVIDUALLY
v.
SURRENDRA OVERSEAS LIMITED; APEEJAY LINES, IN PERSONAM; M.V. APJ KARAN, HER ENGINES, BOILERS, TACKLE, ETC. IN REM SURRENDRA OVERSEAS LIMITED, CLAIMANT TO THE RES; APEEJAY LINES, IN PERSONAM AND THE M/V APJ KARAN, HER ENGINES, BOILERS, ETC. IN REM, APPELLANTS IN NO. 93-2059 URVASHI BHATNAGAR, AN INFANT BY HER MOTHER AND NATURAL GUARDIAN, KAPLANA BHATNAGAR; KAPLANA BHATNAGAR, INDIVIDUALLY V. SURRENDRA OVERSEAS LIMITED; APEEJAY LINES, IN PERSONAM; M.V. APJ KARAN, HER ENGINES, BOILERS, TACKLE, ETC. IN REM URVASHI BHATNAGAR, AN INFANT BY HER MOTHER AND NATURAL GUARDIAN, KALPANA BHATNAGAR, AND KALPANA BHATNAGAR, INDIVIDUALLY, APPELLANTS IN NO. 93-2076 ARGUED JULY 19, 1994



APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA. (D.C. Civil No. 92-06321).

Before: Scirica, Lewis and Rosenn, Circuit Judges.

Author: Lewis

Opinion OF THE COURT

LEWIS, Circuit Judge.

This case principally involves an issue of first impression for this court: can extreme delay in an alternative forum render that forum inadequate for purposes of assessing a forum non conveniens motion? We answer that question in the affirmative, and then address a number of issues arising from the trial of this matter.

This case comes to us after final judgment in rem in favor of plaintiff Urvashi Bhatnagar, a young female Indian national, against Surrendra Overseas Ltd. ("Surrendra"), an Indian shipping company, Apeejay Lines, an unincorporated division of Surrendra,*fn1 and the M/V APJ KARAN, an Indian vessel, for injuries that Urvashi sustained aboard the APJ KARAN on the high seas. In 1991, while six-year old Urvashi was playing a "game" with one of the ship's crew on the bridge of the APJ KARAN, her right hand and arm were severely lacerated when they came in contact with a device used to repel water from the windows of the bridge.

Urvashi and her mother, Kalpana, sued Surrendra in federal court in New York under the court's admiralty jurisdiction, then transferred the action to the Eastern District of Pennsylvania. After discovery, Surrendra filed a series of motions seeking to dismiss the complaint on the grounds of forum non conveniens. The district court denied the motions, however, and after a two-day bench trial during which the court purported to apply Indian law, the court awarded Urvashi a total of $189,331.00 in damages. Surrendra appeals the judgment, and Urvashi and her mother cross-appeal. We will affirm in most respects but will remand for a redetermination of damages under Indian law.

I.

A.

The Bhatnagars are a family of Indian citizens. Sanjay Bhatnagar, Urvashi's father, was hired in India as an assistant engineer aboard the vessel APJ KARAN, one of eight vessels owned and operated in international commerce by Surrendra. Sanjay boarded the APJ KARAN in the Indian territory of Goa in November 1990. With Surrendra's permission, Sanjay's wife, son and daughter were to join him on the vessel.

The family had planned to board the vessel in India with Sanjay, but were unable to obtain the requisite visas. With the Surrendra's assistance, however, Sanjay's wife Kalpana Bhatnagar and her two children flew to the United States and boarded the ship in Portland, Oregon, where the APJ KARAN took on a cargo of grain destined for Alexandria, Egypt.

On board the APJ KARAN, rules and regulations designated areas where unauthorized people were not allowed to go. Notices were posted in several places indicating which areas were off limits. For example, there was a sign posted at the top of the stairs leading to the bridge which said "off limits," and a sign posted outside the radio room which said "Navigators Only." The captain of the APJ KARAN testified that he spoke with Sanjay Bhatnagar and his family and instructed them not to enter the restricted areas, and Sanjay also testified that he spoke with his family concerning the areas they were not allowed to visit.

Despite these rules, on March 17, 1991, the ship's steward took Urvashi to the bridge -- an "off limits" area -while he was serving tea to the duty officer. Once on the bridge, the steward left Urvashi, and the six-year old approached the helmsman. The helmsman picked her up and placed her upon a railing facing the windows and a "clearview screen," a device which repels rain and other moisture by revolving at a high rate of speed. It was rainy that day, and the clearview screen revolved rapidly to provide the helm with an unimpeded view of the ocean ahead.

For some reason, the helmsman decided to show Urvashi how to play a "game": he feigned putting his hand on the clearview screen, then encouraged her to do the same. However, when Urvashi followed the helmsman's lead her hand slipped, and the clearview screen severely injured her right hand and portions of her arm.

The APJ KARAN was steaming in international waters when the accident occurred. The captain immediately radioed for help and was transferred to the United States Coast Guard, which directed the captain to divert the vessel to the nearest landfall. That turned out to be the island of Antigua, and Urvashi, her brother and her mother were evacuated there.

After receiving emergency medical treatment on Antigua, on March 20, 1991 Urvashi and her mother and brother flew to New York, where their relatives, who are doctors, arranged for further medical assistance. The three Bhatnagars (later joined by Sanjay) entered the United States on emergency medical visas valid for six months.

Despite the expiration of their emergency medical visas in September 1991, the Bhatnagars have remained in New York living with relatives since the accident. Urvashi has undergone therapy for her wounds and has attended school in West Islip, New York. In all, Urvashi had a series of six operations from March 1991 through May 1992 to repair her hand.

B.

Urvashi and Kalpana Bhatnagar brought suit in September 1992 against Surrendra, ApeeJay Lines, and the APJ KARAN in the United States District Court for the Southern District of New York. Urvashi alleged negligence, lack of adequate medical care and gross negligence, and Kalpana claimed loss of services resulting from the injuries to her daughter. When the APJ KARAN was docked at the Port of Philadelphia in October 1992, however, the plaintiffs transferred the case to the United States District Court for the Eastern District of Pennsylvania, and Surrendra issued to the plaintiffs a letter of undertaking of $2 million in lieu of the vessel's arrest and detention in Philadelphia.

After substantial discovery, Surrendra moved to dismiss the Bhatnagar's complaint on the ground that it was barred by the forum selection clause in Sanjay Bhatnagar's employment contract*fn2 or, alternatively, that the district court should exercise its discretion and dismiss the case under the doctrine of forum non conveniens. The district court denied the initial motion, denied Surrendra's motion for reconsideration or certification of the forum non conveniens ruling under Fed. R. Civ. P. 54(b), and also denied a second motion for reconsideration filed after further discovery. Thus, the case went to trial.

The district court, after a bench trial in which it purported to apply Indian law, awarded Urvashi $33,133 in pecuniary damages for past medical expenses, $6,000 for future medical expenses, and $150,000 for pain and suffering, disability, disfigurement, loss of enjoyment of life, mental anguish and emotional injury. The court ruled in favor of Surrendra on Kalpana Bhatnagar's claims, finding that she had not proven any loss of service or psychiatric injury as a result of Urvashi's injuries.

Surrendra appeals the denial of the district court's rulings with respect to forum non conveniens and also contends that the district court made numerous errors at trial. Urvashi and Kalpana Bhatnagar cross-appeal the adequacy of the judgment in favor of Urvashi and also challenge the district court's judgment in favor of Surrendra on Kalpana Bhatnagar's claims. The district court had jurisdiction pursuant to 28 U.S.C. § 1333. We have jurisdiction under 28 U.S.C. § 1291.

II.

Surrendra makes three claims of error: (1) the district court abused its discretion when it failed to dismiss the case under the doctrine of forum non conveniens ; (2) the court erred in imposing liability upon Surrendra; and (3) the court erroneously calculated Urvashi's damages. We address each of these issues in turn.

A.

It is undisputed that the parties in this case are Indian nationals and the ship on which Urvashi's accident occurred was an Indian-flagged ship on the high seas. Before the district court rejected Surrendra's motion to dismiss on the grounds of forum non conveniens and proceeded to trial, the only links with the United States present in this case were the following: (1) the Bhatnagars claim residence in the United States; (2) Urvashi was treated in the United States by doctors who were therefore available here to testify about the nature and extent of her injuries; and (3) the Bhatnagars were able to secure a letter of undertaking by Surrendra in the United States -- after the suit was filed -- when the APJ KARAN dropped anchor in the Port of Philadelphia.

Given these circumstances, it is hardly surprising that Surrendra argued to the district court that this case should be heard in India, rather than the United States. Surrendra contended that the case had a close factual nexus with India and an absence of ties to the United States. The company also submitted an affidavit of an Indian law expert noting that India has a well-developed legal system which would be able to handle the issues presented in this case. Furthermore, although in effect conceding that the Indian legal system moves much less expeditiously than our domestic courts, Surrendra submitted another affidavit stating that if the case were refiled in India, it would join in petitioning the appropriate judicial officer for expedited hearing of the matter, and that it would not file any unnecessary pleadings or requests that would impede the case. Surrendra's legal expert, moreover, opined that because of Urvashi's young age, the Calcutta High Court (which would hear the case) "would undoubtedly grant an 'expedited hearing' request" if the parties made such a motion. Joint Appendix ("J.A.") 240. Despite Surrendra's arguments, however, the district court refused to dismiss.

Surrendra complains that the district court abused its discretion not only when it failed to grant this original motion, but also when it rejected Surrendra's motion for reconsideration and, later, rejected a second motion seeking reconsideration because of alleged discovery abuses by ...


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