Fidelity Bank PLC v. M/T Tabora

Filing 920090616

UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 08-1706

FIDELITY BANK PLC, Plaintiff - Appellee, v. M/T TABORA, her engines, boilers, etc. In Rem, et al.; NORTHERN FOX SHIPPING N.V.; ERES N.V. BELGIUM, in personam, Defendants ­ Appellants, and THE MASTER OF THE M/T TABORA, Garnishee.

Appeal from the United States District Court for the District of Maryland, at Baltimore. William D. Quarles, Jr., District Judge. (1:05-cv-00871-WDQ)

Argued:

March 24, 2009

Decided:

June 16, 2009

Before MICHAEL, MOTZ, and KING, Circuit Judges.

Vacated and remanded by unpublished per curiam opinion.

ARGUED: Alexander McKenzie Giles, SEMMES, BOWEN & SEMMES, Baltimore, Maryland, for Appellants. James Dygert Skeen, SKEEN & KAUFFMAN, LLP, Baltimore, Maryland, for Appellee. ON BRIEF: JoAnne Zawitoski, SEMMES, BOWEN & SEMMES, Baltimore, Maryland, for Appellants.

Unpublished opinions are not binding precedent in this circuit.

2

PER CURIAM: Eres N.V. Belgium (Eres) and Northern Fox Shipping

N.V. (Northern Fox) appeal the district court's dismissal of their wrongful arrest counterclaim against Fidelity Bank PLC

(Fidelity) on forum non conveniens grounds. conditioned on the Nigerian Federal High

The dismissal was Court accepting

jurisdiction over Eres and Northern Fox and their counterclaim, which would make an alternative forum available, according to the district court. we heard oral On March 19, 2009, less than a week before (and well after the district court

argument

ruled), the Nigerian Federal High Court issued a decision making it clear that the We Nigerian therefore courts vacate have the not accepted court's

jurisdiction.

district

dismissal order and remand for further proceedings.

I. The facts underlying the dispute between the parties were set forth in some detail in our opinion in the previous appeal in this case. See Fidelity Bank v. Northern Fox Shipping

N.V., 242 F. App'x 84 (4th Cir. 2007) (unpublished) (affirming the forum non conveniens dismissal of two of Eres and Northern Fox's counterclaims while vacating and remanding with respect to the dismissal of the wrongful arrest counterclaim, the claim at issue today). A brief summary of those facts follows. 3

Eres, a Belgian corporation, chartered the M/T Tabora, a vessel owned to by Northern a Fox, a of Netherlands bitumen place from just Antilles Curacao, outside

corporation Netherlands

deliver

shipment a

Antilles,

to

predetermined

Nigerian waters near the port of Lagos, Nigeria.

In the fall of

2002 Eres and Northern Fox engaged in a dispute with Fidelity, a bank organized and located in Nigeria that held the bills of lading for the cargo (bitumen), over the failed delivery of the cargo. That dispute eventually led Fidelity to have the M/T

Tabora arrested in the port of Baltimore, Maryland, on March 31, 2005, pursuant to a verified complaint, which included Eres and Northern Fox as defendants. damages. The warrant for the arrest of the M/T Tabora was The complaint sought $8,871,076 in

vacated five days later (on April 5, 2005) based on the district court's determination that Fidelity's in rem claim against the ship was time barred and that Fidelity had failed to establish that it had a pending claim against Eres and Northern Fox in Nigeria. Fidelity then made an ex parte application to the

Federal High Court in Nigeria for an order allowing Fidelity to serve by courier outside Nigerian jurisdiction an amended

statement of claim for wrongful arrest on Eres and Northern Fox, which that court granted on April 8, 2005. in Maryland, however, denied Fidelity's 4 The district court motion to

subsequent

reconsider

its

order

vacating

the

arrest

of

the

M/T

Tabora.

Meanwhile, also on April 8, 2005, Eres and Northern Fox filed their answer in district arrest court of the along M/T with a counterclaim unpaid

alleging

wrongful

Tabora,

seeking

demurrage charges from Fidelity, and requesting a declaratory judgment that Fidelity's claim was time barred. After Eres and Northern Fox filed a motion for summary judgment on September 23, 2005, Fidelity moved on October 12, 2005, to have its complaint dismissed without prejudice under Fed. R. Civ. P. 41(a)(2) and to have the entire action

(including Eres and Northern Fox's counterclaim) dismissed on forum non conveniens grounds. On December 9, 2005, the district

court granted Fidelity's forum non conveniens motion and denied Eres and Northern Fox's summary judgment motion as moot. On December 20, 2005, the Nigerian Federal High Court issued an order dismissing the April 8, 2005, order allowing Fidelity to serve Eres and Northern Fox by courier (or

substituted service).

The Nigerian court also stated that it

lacked in rem jurisdiction over the M/T Tabora, but that its original writ of summons was still valid in personam against Eres and Northern Fox. Nigerian Court of Fidelity filed a notice of appeal in the challenging several rulings of the

Appeal

Federal High Court.

Fidelity claims that its appeal encompassed

the December 20, 2005, ruling of the Federal High Court. 5

Meanwhile, Eres and Northern Fox appealed the Maryland district court decision. the forum non conveniens On July 13, 2007, this court affirmed dismissal of as Eres to the demurrage and

declaratory

judgment

counts

and

Northern

Fox's

counterclaim, but vacated the dismissal of their wrongful arrest count and remanded for further forum non conveniens analysis. Fidelity Bank, 242 F. App'x at 92-93. Specifically, we

determined (1) that Fidelity had failed to show that Nigerian law recognized a claim for wrongful arrest or that the Nigerian courts would take jurisdiction of that claim and (2) that the district court had not properly weighed the public and private interest factors at issue. Id. (citing Gulf Oil Corp. v.

Gilbert, 330 U.S. 501, 508-09 (1947)). After remand the district court received further

evidence and briefing on these questions, and on February 28, 2008, it again dismissed Eres and Northern Fox's wrongful arrest counterclaim on forum non conveniens grounds. The district

court first concluded that Eres and Northern Fox had "the better of the statutory argument" their that Nigerian law did not confer

jurisdiction

over

wrongful

arrest

counterclaim.

Nevertheless, the court determined that a Nigerian forum "may be available" and "appears to be adequate" for the purposes of

forum non conveniens. v. Reyno, 454 U.S.

J.A. 1293, 1296. See Piper Aircraft Co. 235, 247-55 6 (1981) (requiring that the

foreign

forum of

be

both

available Nigeria was

and an

adequate). available

In forum,

its the

discussion

whether

district court noted that Fidelity had an ongoing appeal in the Nigerian Court of Appeal potentially challenging the December 20, 2005, order of the Nigerian Federal High Court that had vacated its earlier order allowing Fidelity to serve Eres and Northern Fox by courier. A decision in Fidelity's favor would

render Eres and Northern Fox parties to the Nigerian action. The district court thus concluded that "there exist[ed] a

possibility that Eres and Northern Fox could bring the wrongful arrest counterclaim in Nigeria," even though "the status of the Nigerian action appear[ed] to be in flux." J.A. at 1296.

Because of this uncertainty, the district court conditioned its forum non conveniens dismissal on "the Nigerian Federal High Court accepting jurisdiction over [Eres and Northern Fox] and their counterclaim." J.A. 1301.

Eres and Northern Fox then filed the appeal pending before us today. At oral argument on March 24, 2009, counsel

for Eres and Northern Fox informed us that the Court of Appeal in Nigeria had recently issued a written decision in Fidelity's purported appeal of the December 20, 2005, order of the Federal High Court. That decision, issued on March 19, 2009, was

submitted to this court on March 31.

The decision held that

Fidelity's notice of appeal had in fact failed to appeal the 7

December

20,

2005,

order,

which

therefore

remained

intact.

Fidelity Bank PLC v. M/T "Tabora", CA/L/551/2006, slip op. at 26 (Court of Appeal, Holden at Lagos March 19, 2009).

II. We review a district court's forum non conveniens

decision for abuse of discretion. 257. Forum non conveniens

Piper Aircraft, 454 U.S. at proceeds in two steps.

analysis

First, a court determines whether there exists an alternative forum that is both available and adequate. U.S. at 254. Piper Aircraft, 454

Second, if such a forum exists, the court must

then weigh the private and public interest factors from Gulf Oil. 330 U.S. 501. The primary issue before the district court was

whether the Nigerian courts would recognize and entertain Eres and Northern Fox's counterclaim for wrongful arrest. If not, The

Nigeria would not be available as an alternative forum.

district court held that because there was a possibility that the pending appeal in the Nigerian Court of Appeal would result in the assertion of jurisdiction over Eres and Northern Fox and their claims, Nigeria was an available alternative forum. But

in order to account for the uncertainty surrounding the Nigerian proceedings, conveniens the district on court the 8 conditioned its forum High non Court

dismissal

Nigerian

Federal

accepting

jurisdiction

over

Eres

and

Northern

Fox

and

their

counterclaim. Notwithstanding the inclusion of the condition, there is a question of whether a forum non conveniens dismissal may be based on only a possibility that an alternative forum is

available.

See Bank of Credit & Commerce Int'l (Overseas) Ltd.

v. State Bank of Pakistan, 273 F.3d 241, 247 (2d Cir. 2001) (holding that a district court dismissing a case on forum non conveniens grounds should have a "`justifiable belief' that the [alternative However, we forum] need would not decline with that to hear the case."). the

not

grapple

question

because

March 19, 2009, decision of the Nigerian Court of Appeal has made it clear that the Nigerian courts have not accepted That

jurisdiction over the wrongful arrest claim at issue here. decision affirmed the continuing vitality of the

Nigerian

Federal High Court's December 20, 2005, order, which dismissed a prior order allowing Fidelity to serve Eres and Northern Fox by courier outside Nigerian jurisdiction. Fidelity Bank,

CA/L/551/2006, slip op. at 26.

The Court of Appeal decision

states in no uncertain terms that the Nigerian courts lacked in rem jurisdiction over the M/T Tabora, that service has not been made on Eres or Northern Fox, and that substituted service

cannot be made on Eres and Northern Fox because the December 20,

9

2005, order of the Federal High Court disallowing such service was left intact. CA/L/551/2006, slip op. at 15, 26.

Thus, regardless of whether the district court erred in granting a forum non conveniens dismissal, the condition on which that dismissal was based -- that the Nigerian Federal High Court accept jurisdiction over Eres and Northern Fox and their counterclaim -- has not been satisfied. district court's order dismissing We therefore vacate the and Northern Fox's

Eres

wrongful arrest counterclaim and remand for proceedings on the merits of that claim. VACATED AND REMANDED

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