VIKING SPORT CRUISERS, INC.

Filing 25

OPINION FILED. Signed by Judge Noel L. Hillman on 2/23/17. (js)

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
___________________________________
IN RE: VIKING SPORT CRUISERS, INC.,
as Owner of a 2015 60 foot Princess
Motor Yacht called “PRINCESS 60”,
for exoneration from or limitation
of liability
____________________________________

Civil No. 15-8749 (NLH/KMW)
OPINION

APPEARANCES:
RUBIN, FIORELLA & FRIEDMAN LLP
By: James E. Mercante, Esq.
Kristin E. Poling, Esq.
630 Third Avenue, 3rd Floor
New York, New York 10017
Counsel for Petitioner, Viking Sport Cruisers

MARSHALL DENNEHEY WARNER COLEMAN & GOGGIN
By: Christopher J. DiCicco, Esq.
Daniel G. McDermott, Esq.
88 Pine Street, 21st Floor
New York, New York 10005
Counsel for Claimant Margaret Krupinski

HILLMAN, District Judge
This admiralty suit for exoneration from or limitation of
liability arises out of a collision between two boats which
occurred in the navigable waters of Rhode Island.

Claimant

Margaret Krupinski’s husband, Walter Krupinski, died in the
accident.
Claimant Krupinski presently moves to transfer this suit to
the District of Rhode Island.

For the reasons stated herein, the

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motion will be granted.
I.
Claimant alleges, “on September 22, 2015, the PRINCESS 60
(“the vessel”) was upon the navigable waters of Fisher Island
Sound, Watch Hill, Rhode Island, when it struck the PEGGY K,
resulting in damage to the PEGGY K and resulting in the fatality of
Walter S. Krupinski, the owner of the 23-foot Steiger motor boat
known as PEGGY K.” (Answer ¶ 4; Claim of Margaret Krupinski ¶ 5)
It appears undisputed, at least for purposes of the instant
motion, that the decedent was the only person aboard the PEGGY K,
and that only Captain Cooper Bacon and Mate William Noe were aboard
PRINCESS 60 when the collision occurred.

Bacon and Noe both reside

in New Jersey.
Petitioner Viking Sport Cruisers is incorporated in New Jersey
and maintains its principal place of business in New Jersey.
Claimant Margaret Krupinski resides in Connecticut.
Claimant asserts that U.S. Coast Guard Offices located in both
Connecticut and Rhode Island investigated the accident.

In

addition, the Rhode Island Department of Environmental Management
conducted an investigation.

Westerly, Rhode Island Police

Department also had involvement after the accident, and the
decedent’s autopsy was performed by the Rhode Island Department of
Health.

The first responders to the accident -- the fire district

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and the ambulance corps -- are also alleged to be based in Rhode
Island.
Claimant also identifies two “fisherman witnesses” who reside
in Rhode Island.
Lastly, related litigation is proceeding in Rhode Island state
court.

First, Claimant asserts that a criminal proceeding is

pending against Captain Bacon “before the Rhode Island Traffic
Tribunal for three navigation violations.” (Reply Brief, p. 3)
Second, Claimant has filed a lawsuit against Captain Bacon and
William Noe in Rhode Island Superior Court.
II.
Transfer of venue in admiralty suits for exoneration from or
limitation of liability is governed by Supplemental Federal Rule of
Civil Procedure F(9) which provides, in relevant part, “[f]or the
convenience of the parties and witnesses, in the interest of
justice, the court may transfer the action to any district.”
“The rule is similar to the transfer provision under 28 U.S.C.
§ 1404(a).” In the Matter of the Complaint of Weeks Marine, Inc.,
No. 16-1463, 2016 U.S. Dist. LEXIS 77808 at *5 (D.N.J. June 14,
2016); see also Advisory Committee Note to Supplemental Rule
F(9)(“The provision for transfer is revised to conform closely to
the language of 28 U.S.C. §§ 1404(a) and 1406(a), though it retains
the existing rule’s provision for transfer to any district for

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convenience.”).

Thus, in deciding a motion to transfer under

Supplemental Rule F(9), the Court considers the factors enumerated
in the Rule -- convenience of the parties, convenience of the
witnesses, and the interests of justice -- as well as
plaintiff’s forum preference as manifested in the
original choice; the defendant’s preference; whether the
claim arose elsewhere; the convenience of the parties as
indicated by their relative physical and financial
condition; the convenience of the witnesses — but only
to the extent that the witnesses may actually be
unavailable for trial in one of the fora; and the
location of books and records (similarly limited to the
extent that the files could not be produced in the
alternative forum).
Jumara v. State Farm Ins. Co., 55 F.3d 873, 879 (3d Cir. 1995).
The Court also considers, to the extent applicable,
the
enforceability
of
the
judgment;
practical
considerations
that could
make
the
trial
easy,
expeditious, or inexpensive; the relative administrative
difficulty in the two fora resulting from court
congestion; the local interest in deciding local
controversies at home; the public policies of the fora;
and the familiarity of the trial judge with the
applicable state law in diversity cases.
Id. at 879-80.
III.
The Court has considered all the applicable factors identified
above and holds that transfer to the District of Rhode Island is
warranted.
First, the collision occurred in Rhode Island.

Caselaw

demonstrates that this factor is frequently “[o]f primary

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significance” in the transfer analysis. In re: Norfolk Dredging
Co., 240 F. Supp. 2d 532, 537 (E.D.Va. 2002)(granting motion to
transfer to the District of Maryland; collision occurred in
Maryland); see also In re: Weeks Marine, Inc., 2016 U.S. Dist.
LEXIS 77808 (granting motion to transfer to the Southern District
of New York; fatal collision occurred in New York; “the core issues
in this case . . . are strongly tied to the situs of the accident,
which was in New York, not to [New Jersey] the point of
embarkation”); In re: Campbell Transp. Co., Inc., 368 F. Supp. 2d
553 (N.D.W.V. 2005)(granting motion to transfer to the Western
District of Pennsylvania; fatal collision occurred in
Pennsylvania); In re: Bankers Trust Co., Trustee, 640 F. Supp. 11
(E.D.Pa. 1985)(granting motion to transfer to the Northern District
of California; fatal accident occurred in California). 1 Rhode
Island has an interest in “deciding [this] local controvers[y] at
home.” Jumara, 55 F.3d at 879.

Indeed, the fact that Rhode Island

has criminally charged Captain Bacon in connection with the
collision at issue indicates that this interest is real and not

1

Cf. In re: The Connecticut Nat’l Bank, Trustee, 687 F. Supp. 111
(S.D.N.Y. 1988)(denying motion to transfer to the District of Hawaii;
collision did not occur in Hawaii, and none of the claimants were
domiciled in Hawaii); The Fluor Corp. Ltd. v. S/S President Coolidge, 52
F.R.D. 538 (S.D.N.Y. 1971)(denying motion to transfer to the Central
District of California; damage allegedly occurred while vessel was docked
in New York).

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merely theoretical.
Second, the post-collision investigations were mainly
conducted by authorities located in Rhode Island.

This is

particularly significant because the non-party witnesses from these
authorities would be subject to the District of Rhode Island’s
subpoena power, but would not be subject to this Court’s subpoena
power. 2 See In re Norfolk Dredging Co., 240 F. Supp. 2d at 537
(granting motion to transfer, explaining, “[t]he location of nonparty witnesses is determinative. . . . To compel the presence of
the witnesses, any non-party witness would not be within the
subpoena power of this Court, however, all such witnesses are
within the subpoena power of the [transferee court].

This factor

weighs heavily in favor of transferring venue.”). 3

2

See Fed. R. Civ. P. 45(c)(1)(“A subpoena may command a person to attend
a trial, hearing, or deposition only as follows: (A) within 100 miles of
where the person resides, is employed, or regularly transacts business in
person.”).
Viking Cruiser’s argument that “the location of the Coast Guard’s
investigation has no venue implications” (Opposition Brief, p. 6), is
flatly contradicted by caselaw. See In re: Weeks Marine, Inc., 2016 U.S.
Dist. LEXIS at *3 (granting motion to transfer to the Southern District
of New York; observing that “the United States Coast Guard, Sector New
York, ha[s] [an] ongoing investigation into the incident.”); In re:
Campbell Transp. Co. Inc., 368 F. Supp. 2d at 556 (granting motion to
transfer to the Western District of Pennsylvania; observing that “the
majority of the Coast Guard personnel involved in the investigation of
the accident are stationed at the Coast Guard offices in Pittsburgh,
Pennsylvania.”); In re: The Connecticut Nat’l Bank, Trustee, 687 F. Supp.
at 114 (denying motion to transfer to the District of Hawaii; observing
that the Coast Guard investigation was conducted by members located in
Philadelphia, Boston and New Orleans); In re: Bankers Trust Co., Trustee,
640 F. Supp. at *15 (granting motion to transfer to the Northern District
3

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With regard to the location of witnesses and the availability
of process, Viking argues that Captain Bacon and William Noe (both
New Jersey residents) are also non-parties to this proceeding,
insofar as they are allegedly independent contractors, and not
employees, of Viking Sport Cruisers.

Thus, Viking argues,

“transferring this action from New Jersey to Rhode Island . . .
would sacrifice two . . . material witnesses.” (Opposition Brief,
p. 8-9)
Assuming arguendo that Bacon and Noe are indeed non-parties by
virtue of their alleged independent contractor status (Claimant
disputes this issue), the Court fails to see how their testimony
could not be obtained for use in this suit if transferred to Rhode
Island.

Viking itself asserts that Bacon and Noe “can be impleaded

into this Action.” (Opposition Brief, p. 9)

Thus, if necessary,

Bacon and Noe can be made parties to this suit, even if transferred
to Rhode Island. 4

of California; observing “[t]he Coast Guard investigation of the incident
was conducted in California. Process would be available in the Northern
District of California to summon members of the Coast Guard, if such
appearance should become necessary.”).
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It appears that Rhode Island would have personal jurisdiction over Bacon
and Noe, because (a) they were aboard the PRINCESS 60 in Rhode Island
when the collision occurred and Claimant alleges that the “untimely death
of [Mr.] Krupinski and the total destruction of his vessel” “were caused
solely by the negligence of” Viking Cruisers, Bacon and Noe. (Claim ¶ 67); and (b) it appears that personal jurisdiction has been obtained over
these two men in the related Rhode Island state court suit brought by
Mrs. Krupinski. The Court, however, makes no legal holding on this
issue.

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Lastly, this suit’s New Jersey connections are quite limited.
The collision did not occur in New Jersey, and no investigation was
conducted by New Jersey authorities.

While the Court recognizes

Viking is a New Jersey corporation, that factor is outweighed by
the other factors discussed above.
IV.
For the reasons stated, Claimant Krupinski’s Motion to
Transfer this case to the United States District Court for the
District of Rhode Island will be granted.

An appropriate order

accompanies this opinion.

Dated: February 23, 2017
At Camden, New Jersey

_s/ Noel L. Hillman
___
NOEL L. HILLMAN, U.S.D.J.

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