Blog Post


Dismissal of Case For Forum Non Conveniens

Posted by: James M. Beard
August 30, 2009
Topic: Legal Cases and Concerns

When a maritime accident occurs in one location but the involved parties are from other jurisdictions, the Court sometimes must decide where is the most "convenient" jurisdiction for the lawsuit. One such recent example of a Court's determination of the most convenient jurisdiction arose following the death of a Bahamian national who was severely injured and ultimately died as the result of a collision with another vessel. The Bahamian national, Mr. Pinder, was in a skiff belonging to a Bahamian ship's skiff fleet. Mr. Pinder's skiff was allegedly struck by the M/V MALVI navigated by Mr. Moscetti in territorial waters of the Bahamas. Mr. Moscetti is a Florida resident and the M/V MALVI is registered in Florida and owned by a Florida corporation. Ms. Pinder filed suit in the Southern District of Florida for a wrongful death action under the Death on the High Seas Act ("DOSHA").

The defendants' filed a Motion To Dismiss For Forum Non Conveniens stating the Bahamian Courts have jurisdiction over this case. The basis for the defendants' argument was that the plaintiff resides in the Bahamas as did her late husband; the accident happened in Bahamian waters; a majority of witnesses to the case reside in the Bahamas; and the Bahamian authorities investigated the accident. District Court Judge Adalberto Jordan agreed with the defendants and dismissed the case without prejudice.

The Florida Court's analysis is as follows, "District Courts have the discretion to dismiss a case under the doctrine of forum non conveniens where the convenience of the parties and the interests of justice weigh in favor of trying the action in an alternative forum," provided the plaintiff can file her claim in the alternative forum without undue prejudice or inconvenience.

In determining whether the alternative forum was sufficient, the Florida Court stated that it needed to determine whether United States Law applied to the case. In the case at hand, the U.S. law did not mandate a U.S. Court. Ms. Pinder brought her claims under DOSHA which does not have a mandatory venue provision. Additionally, before DOSHA can be applied to a claim, negligence of the defendant(s) needs to be determined pursuant to the tort law of the jurisdiction with the most contact with the event or occurrence. In this case, as noted above, the Bahamas is the forum with the most contact and, therefore, Bahamian law would be the applicable tort law.

Having determined this issue, the Court then needed to look to three factors to determine the appropriate forum; 1) is there an adequate alternative forum; 2) do the private and public factors weigh in favor of the alternative forum; and 3) can the plaintiff file her claim in the alternative forum without undue prejudice and inconvenience.

The Florida Court states that an adequate forum is one that provides some sort of relief, even if the relief is not perfect. The Florida Court noted that Bahamian Law is derived from English Common law and, therefore, recognizes theories of negligence. Additionally, Bahamian Law has a remedy similar to Florida's wrongful death action; the Accidents Act and Survival of Action Act.

The Florida Court then turned to public and private factors. The Florida Court recognized that it had no jurisdiction over the potential Bahamian witnesses and, therefore, would not have the ability to intervene should an issue arise regarding making witnesses available in the Florida Court. Additionally, all documentary evidence necessary to prove or disprove plaintiffs' claims are located in the Bahamas, such as official documentation regarding the maritime conditions at the time of the collision. Furthermore, because under DOSHA the Court has to also consider the "degree of negligence of the decedent and reduce the recovery accordingly," any documents related to decedent's maritime record would be located in the Bahamas as well. Based on the above, the Florida Court believed that the private factors were clear that the Bahamas was the appropriate forum.

In terms of public factors, the decedent was a Bahamian national and was killed in Bahamian waters by a foreign national. The Bahamas has an interest in seeing that the necessary steps are taken to ensure that the appropriate damages are awarded to promote safety to its residents and tourists through its laws.

Finally, the Florida Court needed to ensure that plaintiff's claims were not prejudiced by a dismissal for forum non conveniens. The Florida Court set forth several conditions for the defendants to ensure plaintiff's claims were preserved such as the defendants must agreed to service of process and jurisdiction in the Bahamas; the defendants must waive any statute of limitations for up to one year from the date of the order to allow plaintiff to refile her claims; the defendants must make available to plaintiff all evidence and witnesses in their custody or control, that is relevant to the action in questions whether located in the U.S. or not.

The Florida Court dismissed Ms. Pinder's case without prejudice and further ordered that if the defendants failed to comply with any conditions set forth above or the Bahamian Court declines to accept jurisdiction, Ms. Pinder's case would be reinstated in the Florida Court effective the date of its original filing.