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United States District Court, E.D. Pennsylvania

April 13, 2004.

MALAYSIA INTERNATIONAL SHIPPING CORPORATION BERHAD Menara Dayaburni, Jalan Hishamuddin 50712, Kuala Lumpur MALAYSIA Plaintiff,
SINOCHEM INTERNATIONAL CO. LTD. 18, 19 F, Jinmao Tower No. 88 Century Boulevard Pudong New Area Shanghai CHINA Defendant

The opinion of the court was delivered by: FRANKLIN VAN ANTWERPEN, District Judge


This Court entered an Order on March 1, 2004, dismissing this matter on grounds of forum non conveniens. Plaintiff Malaysia International Shipping Corporation (MISC) has filed the instant Motion for Reconsideration, pursuant to Federal Rule of Civil Procedure 59(e) and Local Rule 7.1(g), alleging that this Court erroneously weighed private and public factors inherent in a forum non conveniens analysis, thus committing manifest errors of law and fact. For the reasons stated below, we disagree, and will deny said motion.


  Our Order granting Defendant Sinochem International Co. Ltd.'s (Sinochem) Motion to Dismiss, filed March 1, 2004, sufficiently details the facts of this case. However, we will briefly outline the pertinent facts. Defendant entered into a contract with a U.S. company for the sale of steel coils, pursuant to which a valid bill of lading, showing that the cargo had been loaded on or before April 30, 2003, had to be issued before the seller could receive payment. The purchase contract called for any disputes arising out of the contract to be arbitrated under Chinese law.

  In Philadelphia, the steel coils were loaded on a vessel, of which Plaintiff MISC was the managing owner, and shipped to China. A bill of lading acknowledging receipt of the cargo, dated April 30, 2003, was issued in Philadelphia. The contract of carriage accompanying the bill of lading called for the application of the Hague Rules, which implicates the Carriage of Goods at Sea Act (COGSA) under U.S. law. The bill of lading also incorporated a charter party,*fn1 the terms of which currently are undisclosed, but which, according to evidence submitted previously, appear to implicate U.S. law.*fn2

  Upon arrival at the Chinese port in June 2003, Plaintiff's vessel carrying Defendant's cargo was arrested by order of the Guangzhou Admiralty Court, pursuant to a petition filed by Defendant for preservation of a maritime claim. This claim was based on an allegation that Plaintiff had fraudulently backdated the bill of lading (i.e., dated the bill of lading April 30, 2003, when it actually did not load the shipment until May). As required by the Chinese court's order, Plaintiff paid the US $9,000,000 security bond to obtain release of its vessel, and Defendant filed a complaint in Chinese Admiralty Court, on July 2, 2003.

  The Chinese court has since rejected Plaintiff's jurisdictional objections to Defendant's Complaint, which Plaintiff appealed to China's court of appeal.*fn3 China's High Court, in a final judgment, affirmed the lower court's decision that this matter falls under Chinese jurisdiction.

  On June 23, 2003, Plaintiff filed a Complaint in this Court, alleging that Defendant's accusation of fraud constituted "negligent misrepresentation [to the Chinese Admiralty Court] of [Plaintiffs] vessel's fitness and suitability to load its cargo." (See Am. Compl. ¶¶ 30, 34.) On March 1, 2004, this Court issued an Order granting Defendant's Motion to Dismiss and dismissing this matter for forum non conveniens without prejudice to Plaintiff's right to proceed in the appropriate Chinese court. Plaintiff now files the instant Motion for Reconsideration, claiming that we erred in our forum non conveniens analysis. We disagree. Plaintiff has failed to either identify a change in controlling law, introduce new evidence warranting reconsideration, or identify any manifest error of law or fact. Its disagreement with our weighing of the evidence does not satisfy the high standard for granting a Motion for Reconsideration.


  Motions for reconsideration under Federal Rule of Civil Procedure 59(e) are intended "to correct manifest errors of law or fact or to present newly discovered evidence." Harsco. Corp. v. Zlotnicki, 779 F.2d 906, 909 (3d Cir. 1985). They are not available to provide unhappy parties an additional opportunity to sway the court, and "may not be used by litigants to `rehash' the same arguments and facts previously presented to the court." Stepanuk v. State Farm Mut. Auto Ins. Co., No. 92-6095, 1993 WL 166748, at *2 (E.D. Pa. May 14, 1993).

  As such, the applicable standard in this district is a rather stringent one, generally allowing a motion for reconsideration only on one of three grounds:

(1) there has been an intervening change in controlling law;
(2) new evidence, which was not previously available, has become available; or
(3) it is necessary to correct a clear error of law or to prevent manifest injustice.
Klee v. Lehigh Valley Hospital, No. 97-4642, 1998 WL 966011, at *1 (E.D. Pa. Nov. 30, 1998), aff'd, 203 F.3d 817 (3d Cir. 1999). Plaintiff has neither alleged a change in controlling law nor the existence of new evidence. Thus, its motion can survive only if it can demonstrate a clear legal error or a manifest injustice by this Court in our previous order granting Defendant's Motion to Dismiss.

  Plaintiff appears to raise three grounds for reconsideration regarding our analysis of forum non conveniens: (1) our analysis of public and private interest factors inadequately considered "all of the American witnesses and the import of their testimony"; (2) we erred in our determination of the most convenient forum; and (3) we failed to sufficiently consider American interests. (Pl's Br. at 2.) Having neglected to follow its own statement that it be "mindful of the need to . . . not merely [] reargue matters dealt with previously," Plaintiff has failed to establish any of these grounds. See id

  First, Plaintiff argues that we inadequately weighed private interest factors because "the witnesses in the US far outnumber the Sinochem representatives in the Chinese Admiralty Court," id., and that, despite the fact that China has retained jurisdiction, we should weigh the existence of a parallel suit in Chinese court in favor of Plaintiff. As we found in our prior opinion, the private interest factors that Plaintiff claims compel us to maintain jurisdiction (ease of access to sources of proof and the availability of compulsory process for unwilling witnesses) do not weigh in favor of trying this matter here.

  Preliminarily, with respect to access to witnesses, while Plaintiff provides additional detail in the instant motion of the identities and backgrounds of the witnesses it anticipates calling at trial, we cannot credit that information as grounds for reconsideration because it was available at the time Plaintiff responded to the Motion to Dismiss. It is well established that "[w]here evidence is not newly discovered, a party may not submit that evidence in support of a motion for reconsideration." Harsco, 779 F.2d at 909; see also e.g. Delong Corp. v. Raymond Int'l Inc., 622 F.2d 1135, 1140, overruled on other grounds by Croker v. Boeing Co. (Vertol Division), 662 F.2d 975 (3d Cir. 1981) (stating that evidence presented in a motion for reargument was available, and thus should have been advanced, at the time the motion for summary judgment was argued).

  Plaintiff's response to Defendant's Motion to Dismiss provided only a vague conclusory statement identifying witnesses, which did not explicitly establish their connection to the United States. (See Pl's Resp. to Def.'s Mot. to Dismiss at 23 ("Witnesses include the Novolog employees, surveyors retained on behalf of the various vessel interests and shipper, the local agent, and so forth. None of these witnesses is located in China. Since the loading took place in Philadelphia, the majority of the witnesses to the loading will be in Pennsylvania.")) Our original opinion considered this statement, noted that, with the exception of the Novolog employees, Plaintiff did not establish any witness' connection to the United States, and determined that consideration of "relative ease of access to sources of proof" did not weigh in favor of trying the matter in the United States. See Memorandum Opinion at 18-19; see also Lacey v. Cessna Aircraft Co., 930 F.2d 170, 180 (3d Cir. 1991) (identifying the private interest factors to consider in a forum non conveniens analysis).

  We are prohibited now from considering Plaintiff's additional evidence regarding the identities and connections of the surveyors, as such information was available at the time we considered Defendant's Motion to Dismiss. Furthermore, even if Plaintiff had supplied that additional information at the appropriate time, it would not have been sufficiently compelling to warrant trying this matter here. The multitude of other factors identified in our prior opinion favoring the Chinese forum would have outweighed this evidence.

  Furthermore, contrary to Plaintiff's argument, "the availability of compulsory process for attendance of unwilling witnesses" does not weigh in favor of the United States, as it appears that both forums are equally competent to address unwilling witnesses. While Plaintiff argues that the Chinese court cannot compel attendance of non-party witnesses, it also recognizes that this Court cannot compel witnesses outside of one hundred miles of the Eastern District of Pennsylvania. (Pl.'s Br. at 5); see also Fed.R.Civ.P. 45 (discussing the subpoena power of federal courts). Thus, both forums may face some difficulty compelling the appearance of witnesses.

  However, China does allow witnesses in distant locations to testify through audio or video technology, as well as admits evidence obtained pursuant to our discovery process. (See Decl. of Lu Min on Reconsideration, ¶¶ 7-8 (identifying the specific rules under Chinese law providing for these mechanisms)); e.g., Sinochem Int'l Co. Ltd. v. Triorient Trading Inc., No. 2:03-mc-87-FVA (E.D. Pa. May 20, 2003) (allowing subpoenas to be issued against Pennsylvania companies in furtherance of litigation in a Chinese court). Thus, because both courts would need to use applicable mechanisms for compelling testimony from foreign witnesses, and China has adequate means of addressing this problem, this factor does not weigh in favor of trying this matter in the United States.

  Plaintiff's arguments simply cannot outweigh, in addition to the other factors set forth in our prior opinion, the overwhelming evidence of a duplicate matter being litigated in a Chinese court which, with respect to critical private interest factors like cost and time to the parties and witnesses, makes it utterly impractical to proceed in this Court. On February 27, 2004, the Guangdong Higher People's Court in China dismissed Plaintiff's appeal of the Guangzhou Admiralty Court's decision and retained jurisdiction of the case. (Civil Ruling at 2 ("Under Articles 19 of the Special Maritime Procedural Law of the People's Republic of China, and Article 243 of the Code of Civil Procedure of the People's Republic of China, the Guangzhou Admiralty Court has jurisdiction over this case."))

  Apparently, Plaintiff cannot raise further appeals and the matter is expected to proceed in the Guangzhou court on April 12, 2004. (Decl. of Lu Min, ¶ 5.) We simply cannot justify doubling the expenses of the parties, taxing witnesses twice to participate in litigation, and consuming this Court's scarce resources to replicate the Chinese litigation, especially considering that both parties can make use of our discovery process to assist foreign litigation, through 28 U.S.C. § 1782.*fn4 Furthermore, while we certainly agree with Plaintiff that we are a court of an independent, separate sovereign from China, and thus may act independently in determining this matter, we do not understand how this fact supports Plaintiff's argument that we should hear the instant case. Our ruling, at which we arrived wholly independent of that of the Chinese court, is not based on the Chinese court's legal analysis of jurisdiction. Rather, the import of the Chinese matter rests simply in the fact that it exists and is proceeding. As required in any analysis of forum non conveniens, we must consider the lack of convenience and heightened burden to the parties of litigating parallel proceedings. See Piper Aircraft v. Reyno, 454 U.S. 235, 241, 241 n.6, 102 S.Ct. 252, 70 L.Ed.2d 419 (1981) (discussing the forum non conveniens analysis and the public and private interest factors inherent in such an analysis, all of which focus on the convenience to the parties and to the forum).

  The overwhelming significance of ensuring the convenience of all parties, by requiring that they participate in litigation of a specific matter in only one forum, tips the scale heavily toward a finding that, despite the deference we pay to Plaintiff's preferred forum, China presents the most convenient and appropriate forum to hear this matter. To find otherwise would "establish . . . oppressiveness and vexation" not only to Defendant, but to all parties involved. Id. at 241.

  Finally, we did not err in our consideration of American interests. While we underscore that motions for reconsideration do not allow for the rehashing of arguments, and thus we need not reconsider Plaintiff's argument that the choice of law provision in the bill of lading mandates that the case be tried here, we will reiterate our finding from our first judgment that the terms of the bill of lading are not implicated here.*fn5 In our original opinion, we stated, and Plaintiff does not dispute, that "Plaintiff does not allege a violation with respect to the nature of the carrier's duties to be carried out pursuant to the bill of lading and carriage contract, such as the manner of loading, conditions in transit, or protection of the cargo." Memorandum Opinion at 21. Consequently, the provisions of the bill of lading do not come into play.

  Moreover, this finding is entirely consistent with Plaintiff's argument that "[u]nder COGSA, the carrier is required to properly and carefully load the goods carried. 46 U.S.C. § 1303(2). In addition, after receiving the goods into his charge, the carrier is required to issue `a bill of lading showing among other things . . . (c) The apparent order and condition of the goods,'" and that this duty implicitly requires "that the bill of lading accurately reflect[] the load." (Pl's Br. at 9 (internal citations excluded) (emphasis in original)). Indeed, if Plaintiff was alleging a defect in the "order and condition of the goods," the manner in which the goods were loaded or shipped, or the description of the load in the bill of lading, we likely would find its argument compelling that the terms of the bill of lading, including the choice of law provision, were implicated. However, we reiterate that Plaintiff does not make such an allegation; its sole complaint alleges a tortious action, not a contractual violation, and involves Defendant's allegation that it wrote the wrong date on the bill.

  The cargo-loss case cited by Plaintiff in support of its position, Berisford Metals Corp. v. S/S Salvador, 779 F.2d 841 (2d Cir. 1985), further highlights this distinction. There, the Second Circuit applied the choice of law provision called for in the bill of lading where, after having neglected to load all of the cargo supplied by the seller, the carrier erred when it described the full load of goods in the bill of lading. The Second Circuit ruled that the carrier was responsible for the value of the lost cargo because it falsely stated in its bill of lading that it had loaded one hundred bundles of tin ingots, even though it had loaded only seventy bundles. Id. at 847-48. As this matter involved conduct by the carrier that adversely affected the cargo, the court appropriately applied the choice of law provision set forth in the bill of lading. Comparatively, here, Plaintiff has raised no such allegation of damage or loss to the cargo.

  It is clear that the import of a bill of lading lies in its focus on the conditions and treatment of cargo shipped by a carrier. Black's defines a "bill of lading" as "[a] document of title acknowledging the receipt of goods by a carrier. . . ." Black's Law Dictionary (7th ed. 1999). It further recognizes a bill of lading to have three specific functions, all of which pertain directly to the cargo: (1) serve as a receipt that the specific goods identified in the bill have been loaded on board; (2) document "`the terms of the contract for the carriage of the goods'"; and (3) serve as the document of title, allowing the owner of the goods to continue to deal with them while they are on board the ship and at sea. Id. (quoting William R. Anson, Principles of the Law of Contract 380 (Arthur L. Corbin ed., 3d Am. ed. 1919)); see also Brisford Metals, 779 F.2d at 845 (citing the same three purposes of a bill of lading).

  Similarly, the Second Circuit's lengthy discussion in Berisford Metals of the import of the bill of lading mentions several cases, all of which involve errors in the bill of lading with respect to the conditions of the cargo or the carrier's actions regarding whether and how it loaded the cargo; all involve some sort of loss or damage to the cargo. See Brisford Metals, 779 F.2d at 845-847 (citing, e.g., Higgins v. Anglo-Algerian Steamship Co., 248 F. 386 (2d Cir. 1918), involving a bill of lading that falsely represented the adequate condition of known damaged goods, and Olivier Straw Goods Corp. v. Osaka Shosen Kaisha, 27 F.2d 129 (2d Cir. 1928), involving a bill of lading that falsely represented that lost cargo had been loaded in a specific location when the goods had in fact never been loaded).

  To beat the proverbial dead horse, it is undisputed that there is no allegation of damage or misconduct with respect to the cargo; rather, the conflict focuses on the date the carrier issued the bill of lading. As such, the function and purpose of the bill of lading are not called into question. Consequently, its choice of law provision is not relevant here.

  Plaintiff further avers that our finding "suggests to all that bills of lading for foreign trade shipped out of the United States can be fraudulently created with no consequence." (Pl.'s Br. at 9.) Our forum non conveniens analysis finds only that the Chinese admiralty court is the best forum for this matter involving alleged negligent misrepresentations made by a Chinese corporation to a Chinese court. We are confident both that the Chinese court shares our appreciation of the significance of properly-issued bills of lading to international maritime commerce, and that it is competent to address this underlying allegation.*fn6

  As Plaintiff points out, a court may dismiss a case when "an alternative forum has jurisdiction to hear the case, and when trial in the chosen forum would `establish . . . oppressiveness and vexation to a defendant . . . out of all proportion to a plaintiff's convenience,' . . ." Piper, 454 U.S. at 241. It is clear that China presents an adequate alternative forum, and we cannot imagine how a duplicate case, which not only would be inconvenient to the parties but onerous to their witnesses, and which implicates no significant American interests, does not create a substantial enough burden for everyone involved to warrant dismissal in this Court.


  Plaintiff filed the instant Motion for Reconsideration, pursuant to Fed.R.Civ.P. 59(e) and Local Rule 7.1(g), on grounds that we erred in our previous forum non conveniens analysis, incorrectly weighing private and public interest factors, and failing to properly consider what it characterized as significant American interests. We find that much of Plaintiff's arguments merely rehashed contentions made earlier in response to Defendant's Motion to Dismiss, and that Plaintiff's disagreement with our analysis does not warrant reconsideration. After careful reconsideration of the issues, we reiterate that China is the best forum to hear this negligence matter between two foreign companies. Thus, we deny the motion. An appropriate order follows.


  AND NOW, this 13th day of April, 2004, upon full consideration of Plaintiff's Motion for Reconsideration, filed March 15, 2004, Defendant's response thereto, filed March 31, 2004, and Plaintiff's Reply Brief, filed April 7, 2004, it is hereby ORDERED that Plaintiff's Motion is DENIED.

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