Paper Operations Consultants International, Ltd., a Corporation v. Ss Hong Kong Amber, Her Engines, Boilers, Tackle and Apparel

Plaintiff-appellant, Paper Operations Consultants International, Ltd., appeals from an order granting the motion of defendant-appellee, Universal Marine Corporation, 1 to dismiss an admiralty ac *669 tion on the ground of forum non conven-iens.

The plaintiff is a Bahamian corporation with its principal office in Palm Beach, Florida. Defendant Universal Marine Corporation is a foreign corporation organized under the laws of Liberia. It is the owner of the SS Hong Kong Amber, a foreign vessel flying a Liberian flag and of Liberian registry. 2 The SS Hong Kong Amber operates as a common carrier of merchandise between ports on the west coast of North America and the Far East.

The plaintiff, through defendant’s general agent in New York, Thor Eckert and Co., Inc., arranged to ship certain papermaking machinery and accessories on the SS Hong Kong Amber from Vancouver, British Columbia, to the Port of Singapore. Plaintiff delivered the cargo to defendant in Vancouver. Vancouver Weighmark Co., Ltd., a Canadian corporation with offices in Vancouver, acted as the plaintiff’s freight forwarder. Western Overseas Shipping, Ltd., another Canadian corporation doing business in…

513 F.2d 667 PAPER OPERATIONS CONSULTANTS INTERNATIONAL, LTD., a corporation, Plaintiff-Appellant, v. SS HONG KONG AMBER, her engines, boilers, tackle and apparel, et al., Defendants-Appellees. No. 73-1261. United States Court of Appeals, Ninth Circuit. March 24, 1975. 1 George L. Waddell (argued), of Dorr, Cooper & Hays, San Francisco, Cal., for plaintiff-appellant. 2 John A. Flynn (argued), of Graham & James, San Francisco, Cal., for defendants-appellees. 3 Before ELY and WALLACE, Circuit Judges, and JAMESON, * District Judge. OPINION JAMESON, District Judge: 4 Plaintiff-appellant, Paper Operations Consultants International, Ltd., appeals from an order granting the motion of defendant-appellee, Universal Marine Corporation, 1 to dismiss an admiralty action on the ground of forum non conveniens. 5 The plaintiff is a Bahamian corporation with its principal office in Palm Beach, Florida. Defendant Universal Marine Corporation is a foreign corporation organized under the laws of Liberia. It is the owner of the SS Hong Kong Amber, a foreign vessel flying a Liberian flag and of Liberian registry. 2 The SS Hong Kong Amber operates as a common carrier of merchandise between…

(concurring in the result):

While I concur in the result reached by my brothers, I deem it important to point out where we part company. Following the same path as the district court, the majority relies on Hoffman v. Goberman, 420 F.2d 423 (3d Cir. 1970), which requires the following for a forum non conveniens dismissal:

Id. at 426—27 (footnote omitted). Thus, the majority adopts an “either/or” test that requires either (1) private factors or (2) public factors sufficient for dismissal. I do not believe the proper test requires ■ such compartmentalization; a combination of both private and public factors may properly lead to a forum non conveniens dismissal.

The language relied upon by the district court and the majority is taken from Justice Jackson’s opinion for the Court in Koster v. Lumbermens Mut. Cas. Co., 330 U.S. 518, 524 , 67 S.Ct. 828 , 91 L.Ed. 1067 (1947). Although the Justice spoke in “either/or” terms, it appears to me that he was only conceptually distinguishing two kinds of factors that a court could consider in making the discretionary decision to retain or decline jurisdiction. This intent becomes clear from a comparison with Justice Jackson’s opinion for the…