PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
In Re: COMPANIA NAVIERA JOANNA
SA, aS OWNER; MSC
MEDITERRANEAN SHIPPING COMPANY
SA,
Appellees,
v. No. 08-1031
KONINKLIJKE BOSKALIS
WESTMINSTER NV; BOSKALIS
INTERNATIONAL BV; WESTMINSTER
INTERNATIONAL BV,
Claimants-Appellants.
Appeal from the United States District Court
for the District of South Carolina, at Charleston.
David C. Norton, District Judge.
(2:07-cv-01531)
Argued: March 24, 2009
Decided: June 26, 2009
Before NIEMEYER and SHEDD, Circuit Judges,
and Thomas D. SCHROEDER, United States District Judge
for the Middle District of North Carolina,
sitting by designation.
Affirmed as modified by published opinion. Judge Niemeyer
wrote the opinion, in which Judge Schroeder joined. Judge
Shedd wrote a dissenting opinion.
2 COMPANIA NAVIERA v. KONINKLIJKE
COUNSEL
ARGUED: Mary Campbell Broughton, FOWLER RODRI-
GUEZ VALDES-FAULI, Mobile, Alabama, for Appellants.
Gordon D. Schreck, BUIST, MOORE, SMYTHE, MCGEE,
PA, Charleston, South Carolina; Douglas M. Muller, MOORE
& VAN ALLEN, PLLC, Charleston, South Carolina, for
Appellees. ON BRIEF: Antonio J. Rodriguez, Alanson T.
Chenault, IV, FOWLER & RODRIGUEZ, New Orleans,
Louisiana; Paul F. Tecklenburg, TECKLENBURG LAW
FIRM, LLC, Charleston, South Carolina, for Appellants. Adr-
iane M. Belton, BUIST, MOORE, SMYTHE, MCGEE, PA,
Charleston, South Carolina, for Appellee MSC Mediterranean
Shipping Company SA.
OPINION
NIEMEYER, Circuit Judge:
During daylight hours on March 8, 2007, a large 107,849-
ton containership, the MSC Joanna, owned by a Panamanian
corporation and chartered by a Swiss corporation, collided
with a 33,423-ton dredge, owned and chartered by Nether-
lands corporations, in Chinese territorial waters near the port
of Tianjin, causing serious damage to both vessels. After Chi-
nese authorities investigated the collision and legal proceed-
ings began, with the arrest of both vessels, in the Tianjin
Admiralty Court to resolve liability and damages, the Nether-
lands corporations commenced eight different actions in four
separate district courts in the United States under Admiralty
Rule B to resolve liability and damages issues under U.S. law.
The owner and charterer of the containership commenced this
limitation-of-liability action under Admiralty Rule F as a
defensive strategy to enjoin the eight actions filed against
them and then to have this action dismissed in favor of the
Chinese proceedings under the doctrine of forum non conve-
niens.
COMPANIA NAVIERA v. KONINKLIJKE 3
The district court enjoined the U.S. actions and granted the
motion to dismiss this action, even though the dredge owner
and charterer may now be beyond the deadline for pursuing
claims in the Tianjin Admiralty Court. The district court
found that "the United States has absolutely no connection to
the events giving rise to this action" and the dredge owner and
charterer should not be allowed to proceed in U.S. courts.
With respect to whether claims might now be barred in the
Chinese court, the district court found that the dredge owner
and charterer deliberately let the deadlines in the Chinese
court pass, and it stated that "[a] party should not be allowed
to assert the unavailability of an alternative forum when the
unavailability is a product of its own purposeful conduct" in
letting the deadline pass.
Even though the multiplicity of proceedings introduce com-
plexity into this case and equities favor each side, we con-
clude that the district court did not, in the particular
circumstances of this case, abuse its discretion in applying the
doctrine of forum non conveniens and dismissing this action.
Accordingly, we affirm, but with the modification that any
applicable statute of limitations or defense based on a missed
deadline may not be affirmatively asserted in the Chinese pro-
ceedings.
I
On March 8, 2007, while the world’s largest dredge, the
W.D. Fairway (approximately 770 feet long), was dredging
the shipping channel leading through the Bohai Gulf to the
port of Tianjin, China, it was hit broadside by a large con-
tainership (approximately 1,100 feet long), the MSC Joanna,
which was departing from the port—or, the W.D. Fairway
crossed the bow of the MSC Joanna causing the collision with
the containership, depending on whose version of the facts is
accepted. Both vessels suffered severe damage, but the hull of
the dredge was breached, and the dredge sank to the bottom
in shallow water. Both vessels, however, were salvaged and
4 COMPANIA NAVIERA v. KONINKLIJKE
temporarily repaired in Chinese shipyards. The owner and
charterer of the dredge now claim that their vessel sustained
$326 million in damages, and the owner and charterer of the
containership claim that their vessel sustained $10.5 million
in damages.
The dredge is owned by Westminster International BV, a
Netherlands corporation, and is chartered to Boskalis Interna-
tional BV, a related Netherlands corporation. Both corpora-
tions receive services from their common grandparent,
Koninklijke Boskalis Westminster NV, a Netherlands corpo-
ration. These three corporations (hereafter "Boskalis") are part
of the Boskalis group, headquartered in Papendrecht, The
Netherlands. Boskalis subchartered the dredge in January
2007 to CCCC Tianjin Dredging Company, Ltd., a Chinese
dredging firm, and at the time of the collision, the dredge was
manned by a Chinese crew and was reflagged with the Chi-
nese flag.
The containership, the MSC Joanna, is owned by Com-
pania Naviera Joanna SA, a Panamanian corporation, and is
chartered to MSC Mediterranean Shipping Company SA, a
Swiss corporation and the second largest container-shipping
company in the world. The MSC Joanna, which frequented
ports in the Far East, was manned by a crew of Italian, Cro-
atian, Indonesian, Polish, and "Yugoslav" nationals and was
flying the Panamanian flag.
The collision occurred in Chinese territorial waters, which
are under the jurisdiction of the Tianjin division of the Mari-
time Safety Administration, an entity "similar to the United
States Coast Guard." The Tianjin Maritime Safety Adminis-
tration conducted an investigation of the collision, interview-
ing witnesses, making diagrams, and retaining documents.
Shortly after the collision, both the Boskalis entities and MSC
Mediterranean Shipping filed petitions with the Tianjin Admi-
ralty Court to obtain evidence-preservation orders, and the
court granted the petitions.
COMPANIA NAVIERA v. KONINKLIJKE 5
About a week after the collision, the Chinese subcharterer
of the dredge filed a claim in the Tianjin Admiralty Court for
$19.5 million in damages, and in connection with that claim,
it obtained an order arresting the MSC Joanna. Then on April
4, 2007, MSC Mediterranean Shipping and Compania Navi-
era Joanna (collectively "MSC Shipping") commenced two
actions in the Tianjin Admiralty Court—a limitation-of-
liability action and a claim for damages against Boskalis and
the Chinese subcharterer in the amount of $10.5 million. In
the limitation-of-liability action, MSC Shipping deposited
approximately $20 million with the Tianjin Admiralty Court
as the properly calculated limitation fund, and the Court
accepted the fund and directed all claimants to file claims for
any damages arising out of the collision against the fund by
June 30, 2007. The amount of the fund was determined by the
tonnage-formula method used by Chinese courts, as well as
by the majority of maritime nations (but not by the United
States).
MSC Shipping’s damages complaint was served on West-
minster International and Boskalis International, the owner
and charterer of the dredge, and MSC Shipping obtained an
order arresting the dredge, the W.D. Fairway. Those two Bos-
kalis companies challenged the Chinese court’s jurisdiction
over them, and thereafter decided to proceed no further in the
Tianjin Admiralty Court. As counsel for Boskalis advised the
district court in this case:
All of the Boskalis entities have made the decision
that they do not desire to participate in China
because they’ve all—those that have been served
have filed objections to the jurisdiction of the Chi-
nese court, which has not been—those objections
have not been heard in China at this time.
At oral argument, however, counsel for Boskalis advised us
that the Chinese court had rejected their jurisdictional chal-
lenge. The record does not reveal whether Boskalis has taken
6 COMPANIA NAVIERA v. KONINKLIJKE
any further steps in the damages action filed against it by
MSC Shipping in China.
Boskalis also made the decision not to file a claim against
the limitation fund in the Tianjin Admiralty Court, even
though it knew of the Chinese court’s admonition that claims
had to be filed by June 30, 2007. As counsel for Boskalis
acknowledged to the district court:
The Court: Okay. So the Boskalis entities made a
reasoned decision after being notified
that there was a limitation of liability
proceeding instituted in the courts of
China not to participate and let the stat-
ute of limitations run?
Counsel for Boskalis: That’s correct, Your Honor.
Instead of proceeding in the Tianjin Admiralty Court, Bos-
kalis sought to litigate its claims for damages against MSC
Shipping in the United States. It acknowledges that it made
this election because U.S. law would, according to its assess-
ment, result in a larger limitation fund than the fund created
under Chinese law. On May 4, 2007, it commenced an action
against MSC Shipping for $326 million in damages in the
Southern District of Texas. Because MSC Shipping was not
found in that district, Boskalis proceeded under Admiralty
Rule B and attached an unrelated vessel chartered by MSC
Shipping, requiring MSC Shipping to file security for the
release of that vessel. Rule B is designed to secure the appear-
ance of the defendant and, through the attachment of defen-
dant’s assets, secure satisfaction of any judgment entered, up
to the value of the assets. See Swift & Co. Packers v. Com-
pania Colombiana del Caribe, S.A., 339 U.S. 684, 693
(1950). Because the amount filed by MSC Shipping to obtain
release of its vessel was insufficient to pay Boskalis’ $326-
million damage claim, Boskalis filed seven additional Rule B
claims in district courts in Texas, Louisiana, South Carolina,
COMPANIA NAVIERA v. KONINKLIJKE 7
and Virginia, obtaining a total of 16 orders of attachment
under Rule B to be executed against vessels chartered by
MSC Shipping.
To avoid the continued attachment of its ships in the United
States, MSC Shipping filed this limitation action pursuant to
Admiralty Rule F and posted security of $111,348,810, based
on the value of the MSC Joanna after the collision and pend-
ing freight, as required by United States law for calculating
limitation liability. See 46 U.S.C. § 30505. Although MSC
Shipping created a limitation fund, it asserted that its purpose
in filing this action was to enjoin the eight actions filed by
Boskalis and then to have this limitation action dismissed,
contending that no court in the United States was a convenient
forum to resolve the issues arising from the collision in China.
MSC Shipping stated in its complaint:
20. Plaintiffs have initiated this proceeding as the
result of Boskalis’ filing of eight actions in four dif-
ferent U.S. District Courts seeking sixteen writs of
attachment. Plaintiffs specifically reserve the right to
assert the legal doctrine of forum non conveniens in
this proceeding, and to file a motion to dismiss this
proceeding on those grounds.
21. Plaintiffs also specifically reserve the right to
assert that foreign law applies both to the determina-
tion of liabilities arising out of the Collision, and to
all issues arising in connection with this limitation
proceeding, said applicable law being that of the
People’s Republic of China.
After the district court enjoined Boskalis from proceeding
in the other actions, MSC Shipping filed a motion to dismiss
this action in favor of the proceedings in the Tianjin Admi-
ralty Court, based on the doctrine of forum non conveniens.
The district court granted the motion, even though Boskalis
claimed that it could not prosecute its claim in the Tianjin
8 COMPANIA NAVIERA v. KONINKLIJKE
Admiralty Court because it had let pass the time for filing
claims there—a question of foreign law on which the parties
disagree. The district court recognized that the doctrine of
forum non conveniens presumes that an adequate alternative
forum is available, but it also concluded that Boskalis could
not assert the unavailability of an alternative forum when the
unavailability was the product of Boskalis’ own purposeful
conduct. As the court observed:
The Chinese maritime court established a June 30,
2007, deadline for filing claims in the limitation
action. At the hearing, claimants’ counsel acknowl-
edged that they deliberately chose "not to participate
in China." Thus, the only reason the Chinese forum
is not available in this case is because claimants
knowingly and purposefully opted to miss the dead-
line for filing their claims in that forum.
(Citations and footnote omitted). The court then addressed the
inappropriateness of a United States court adjudicating Bos-
kalis’ claims, describing the lack of any nexus between the
disputes and the United States. It stated:
The United States has absolutely no connection to
the events giving rise to this action. None of the par-
ties is a United States entity or citizen. Neither vessel
was registered in the United States. Neither vessel
ever darkened the doorstep of a United States port.
No member of either crew was a United States citi-
zen. No United States citizens are fact witnesses.
Most, if not all, of the potential witnesses speak a
language other than English, requiring a plethora of
translators if the case were retained by this court.
***
[And] [t]he most compelling public interest factor
favoring dismissal may be the challenge of applying
foreign law.
COMPANIA NAVIERA v. KONINKLIJKE 9
The court found that the only connection that Boskalis’ claims
have with the United States is "incredibly minor," i.e., that
"other vessels chartered by Mediterranean Shipping Co. regu-
larly call on United States ports."
From the district court’s order, dated November 2, 2007,
dismissing this action under the doctrine of forum non conve-
niens, Boskalis appealed. On appeal, it contends (1) that the
district court improperly allowed MSC Shipping to dismiss its
own limitation of liability proceedings on the ground of forum
non conveniens; (2) that the court erred in dismissing the
action without finding that China was an available and ade-
quate forum; and (3) that the court erred because no condi-
tions were imposed "to maintain Boskalis’ rights" in the
Chinese courts such as having MSC Shipping not assert any
limitation defenses in China.
II
Boskalis’ principal argument, which is procedural in
nature, rests on its assertion that MSC Shipping cannot invoke
the benefits of the limitation procedure in Admiralty Rule F
and then have its own action dismissed for forum non conve-
niens. As Boskalis summarizes the argument:
[T]here is no basis for a party to avail itself of the
extraordinary benefits of a limitation of liability
action in the U.S., and then for that party to seek
forum non conveniens dismissal of its own action—
soon after the deadline for filing claims has passed
in its parallel limitation action filed in China. The
benefits of limitation . . . are only available in return
for the owner appearing and agreeing to pay claims
up to the amount of the limitation fund. What MSC
sought by filing the South Carolina action was not to
limit its liability according to the U.S. Limitation of
Liability Act, but to avoid liability for this collision,
10 COMPANIA NAVIERA v. KONINKLIJKE
which clearly was its fault, through misapplication of
the doctrine of forum non conveniens.
MSC Shipping argues that it has a right to bring this limita-
tion action as a defensive mechanism, employing this action
as the vehicle for enjoining the United States cases and adju-
dicating the proper place to litigate the disputes over the colli-
sion that took place in China. It contends that Boskalis has
advanced no authority to suggest that MSC Shipping used the
limitation procedure improperly and that, to the contrary, case
law supports its use of the limitation procedure as a "purely
necessary defensive action," citing M/S Bremen v. Zapata Off-
Shore Co., 407 U.S. 1, 20 (1972), and In re Geophysical Ser-
vice, Inc., 590 F. Supp. 1346, 1358-61 (S.D. Tex. 1984).
The procedural issues raised by the parties are indeed com-
plex and novel. But we resolve them by considering all of the
proceedings filed to resolve the issues over liability and dam-
ages for the collision and by applying to the aggregate pro-
ceedings original principles related to limitations of liability,
the forum non conveniens doctrine, and public policy.
Multiple actions relating to the collision were filed first in
China. Following the collision on March 8, 2007, MSC Ship-
ping filed (1) a limitation-of-liability action by which it noti-
fied all claimants against the MSC Joanna to file their claims
against the limitation fund; and (2) a damages action against
Boskalis for the damages that the W.D. Fairway allegedly
caused to the MSC Joanna. These actions were commenced
in the Tianjin Admiralty Court, which has jurisdiction over
both vessels, having arrested both, and jurisdiction over all
parties, including the Chinese subcharterer and the Chinese
marine pilots of the ships. No party has questioned the capac-
ity of the Tianjin Admiralty Court to adjudicate fairly and
completely all of the issues.
In an effort to force MSC Shipping to take advantage of the
U.S. Limitation of Liability Act, which in the circumstances
COMPANIA NAVIERA v. KONINKLIJKE 11
of this case would probably result in a more favorable out-
come to Boskalis, Boskalis began filing damage claims in the
United States against MSC Shipping, demanding in each $326
million in damages. Because MSC Shipping could not be
found in the United States, Boskalis employed Admiralty
Rule B and attached other, unrelated ships chartered by MSC
Shipping that were calling on U.S. ports. It filed eight sepa-
rate actions in Texas, Louisiana, South Carolina, and Virginia
and obtained 16 writs of attachment directed against ships
chartered by MSC Shipping. When one of the writs was suc-
cessfully executed in Texas, MSC Shipping filed a bond to
obtain the release of the ship. In response to Boskalis’ actions
and to avoid further attachments of its ships, MSC Shipping
commenced this action to enjoin all of Boskalis’ actions in
favor of one action and then to have it dismissed under the
doctrine of forum non conveniens. In commencing this action,
MSC Shipping announced its purpose to challenge in one
action all of Boskalis’ actions in the United States under the
doctrine of forum non conveniens, alleging that the appropri-
ate forum for litigating the disputes arising from the collision
was in China.
The policy considerations favoring MSC Shipping’s strat-
egy center on the policies underlying the doctrine of forum
non conveniens. MSC Shipping contends that the Chinese
courts arrested the MSC Joanna, as well as the W.D. Fairway,
and that a fund of $20 million, computed in accordance with
Chinese and international law, is on deposit in the Tianjin
Admiralty Court, allowing claims to be made against the
fund. It also notes that the liability for the collision will be
similarly decided in the damages action it commenced against
Boskalis in China, which is also still pending there. In support
of its position, MSC Shipping points out that the collision was
investigated by Chinese officials, who boarded both vessels,
conducted interviews, and collected documentation, and that
most of the witnesses would be in China, as the entire crew
of the W.D. Fairway was Chinese and the marine pilot navi-
gating the MSC Joanna through the channel at the time of the
12 COMPANIA NAVIERA v. KONINKLIJKE
collision was Chinese. It notes that neither of the ships has
ever called on a U.S. port and neither was manned by even a
single U.S. citizen. The owners and charterers of the ships
involved are non-U.S. corporations—from Panama, Switzer-
land, and The Netherlands—and, under conflict of laws rules
applicable to the collision, Chinese law will be applicable to
resolve the disputes.
Boskalis’ principal, if not only, strategic concern with liti-
gating the dispute in China is that the limitation fund created
in China is only $20 million, and its claim for damages
amounts to $326 million. A limitation fund created in the
United States would be much larger—equal to the post-
collision value of the vessel and pending freight. See 46
U.S.C. § 30505. In this case, the MSC Joanna was a large
containership that was damaged in the collision to a relatively
minor extent, leaving a post-collision value, including pend-
ing freight, of more than $111 million. Accordingly, Boskalis
is seeking to take advantage of the U.S. limitation-of-liability
law, and if it cannot succeed, it is willing to waive participa-
tion in the Chinese proceedings, having anticipated that it
would receive little or no recovery from them. Put bluntly,
Boskalis has gambled on the possibility that the U.S. courts
might allow it to proceed in the United States to resolve the
claims between it and MSC Shipping and accepted the risk
that it will obtain no recovery at all from either a U.S. court
or a Chinese court.
The Limitation of Liability Act, 46 U.S.C. § 30501 et seq.,
has its origins in the maritime law of modern Europe and was
adopted by Congress in 1851, having been patterned on its
European counterparts. The Act limits a shipowner’s and
charterer’s liability for claims arising from "any embezzle-
ment, loss, or destruction of any property, goods, or merchan-
dise shipped or put on board the vessel, any loss, damage, or
injury by collision, or any act, matter, or thing, loss, damage,
or forfeiture, done, occasioned, or incurred, without the priv-
ity or knowledge of the owner [or charterer]" to the "value of
COMPANIA NAVIERA v. KONINKLIJKE 13
the vessel and pending freight." 46 U.S.C. § 30505. Limiting
the owner’s liability to the value of his interest in the vessel
and pending freight was intended to place investors in sea-
shipping and navigation on equal footing with corporate
investors in land-based enterprises.
The great object of the law was to encourage ship-
building and to induce capitalists to invest money in
this branch of industry. Unless they can be induced
to do so, the shipping interests of the country must
flag and decline. Those who are willing to manage
and work ships are generally unable to build and fit
them. They have plenty of hardiness and personal
daring and enterprise, but they have little capital. On
the other hand, those who have capital, and invest it
in ships, incur a very large risk in exposing their
property to the hazards of the sea, and to the man-
agement of seafaring men, without making them lia-
ble for additional losses and damage to an indefinite
amount. How many enterprises in mining, manufac-
turing, and internal improvements would be utterly
impracticable if capitalists were not encouraged to
invest in them through corporate institutions by
which they are exempt from personal liability, or
from liability except to a limited extent? The public
interests require the investment of capital in ship-
building, quite as much as in any of these enter-
prises.
Norwich Co. v. Wright, 80 U.S. 104, 121 (1871); see also
Black Diamond S.S. Corp. v. Robert Stewart & Sons, Ltd.,
336 U.S. 386, 399 (1949) (Jackson, J., dissenting) (observing
that the Limitation of Liability Act was "designed to encour-
age American capital to risk itself in shipping ventures where
ships are but boards, sailors but men: . . . and then there is the
peril of waters, winds, and rocks. In order that disaster at sea
might not jeopardize the shipowner’s other assets, Congress
limited his liability . . . . This limitation serves much the same
14 COMPANIA NAVIERA v. KONINKLIJKE
purpose for maritime ventures that the corporate fiction serves
for the landsman’s enterprises" (internal quotation marks and
footnote omitted)).
Thus, upon receipt of a claim arising from damage at sea
or a shipwreck, the owner or charterer of the vessel may com-
mence an action under the Limitation of Liability Act by
depositing a fund with the court for the benefit of all claim-
ants equal to the value of the owner’s interest in the vessel
and pending freight at the end of the voyage or following any
wreck. As in an analogous interpleader action or bankruptcy
proceeding, the limitation of liability provisions authorize the
court to enjoin all prosecutions of claims with respect to the
matter other than claims against the fund. Thus, an owner or
charterer may avoid a multiplicity of actions against it;
resolve the issues raised in the multiplicity of actions in a sin-
gle action; and limit its liability in the one action to the value
of the vessel and pending freight. See generally 46 U.S.C.
§ 30511; Fed. R. Civ. P. Admiralty Rule F.
Complying with the requirements of the Limitation of Lia-
bility Act and Admiralty Rule F, MSC Shipping commenced
this action against Boskalis by depositing with the court
$111,348,810, the value of the MSC Joanna and pending
freight. But its purpose in filing this action was not to have
claims arising from the collision in China paid from the limi-
tation fund but rather to protect itself from the multiplicity of
actions filed by Boskalis against it in the United States relat-
ing to the collision. Boskalis contends that this use of the
limitation-of-liability process amounted to a misuse and that
the district court erroneously countenanced it by enjoining
Boskalis’ U.S. actions in favor of this action and then dismiss-
ing this action in favor of the Chinese proceedings under the
doctrine of forum non conveniens.
In employing Admiralty Rule F in effect to collect all the
actions filed in the United States into one action and have that
one action serve as the forum for resolving MSC Shipping’s
COMPANIA NAVIERA v. KONINKLIJKE 15
forum non conveniens challenge to any U.S. litigation, MSC
Shipping surely did not fulfill the full purpose of the Limita-
tion of Liability Act, which includes the adjudication of
claims against the fund. But it did take advantage of one pur-
pose of the Act, that of enjoining multiple actions in favor of
one action to resolve the disputes. Because the threshold ques-
tion is where trials relating to the collision should take place,
it never intended to have the fund used to pay claims. None-
theless, it did create the fund in the U.S. court as required, and
if it loses its forum non conveniens challenge, it will be
required to litigate the claims in this case. MSC Shipping is
thus gambling, just as Boskalis has gambled. But as with any
gamble, the bettor must accept the risk of losing.
While there is a certain inconsistency in MSC Shipping’s
actions when considered within the "four corners" of a
limitation-of-liability action, in the larger context, MSC Ship-
ping was simply seeking to collect all of the cases in the
United States relating to the Chinese collision and have them
subjected to the test for determining whether they should be
dismissed under the forum non conveniens doctrine. It
announced its purpose for doing so at the outset. The alterna-
tive would have been for MSC Shipping to follow Boskalis
around the country, as it filed each lawsuit seeking to attach
assets of MSC Shipping, and, within each action, to make its
forum non conveniens motion. Judicial efficiency for both
parties, however, favors the course selected by MSC Ship-
ping. The superficial inconsistency of filing an action and
then seeking its dismissal does not in this context become
intolerably inconsistent. The Supreme Court has specifically
rejected the argument that the party initiating the limitation
proceeding cannot then seek to have it dismissed. See M/S
Bremen, 407 U.S. at 2, 19-20 (involving a circumstance
where the party that initiated a limitations action then sought
to dismiss it based on a contractual forum selection clause).
In the peculiar circumstances of this case, we conclude that
MSC Shipping did not abuse the U.S. limitation of liability
16 COMPANIA NAVIERA v. KONINKLIJKE
procedure; it complied with its requirements and was prepared
to accept its outcome. Moreover, the fact that it filed a motion
challenging all U.S. litigation under the forum non conveniens
doctrine in the limitation of liability action that it filed was
not an abuse of the process. If one accepts the conclusion that
a foreign corporation’s preference for U.S. law in resolving a
dispute arising outside of the United States cannot alone serve
as a valid basis for resolving the dispute in the United States,
then MSC Shipping’s course of proceeding in this case was
the most efficient for both parties. Thus, just as the Supreme
Court in Sinochem International Co. v. Malaysia Interna-
tional Shipping Corp., 549 U.S. 422, 435-36 (2007), deferred
to the Guangzhou Admiralty Court in China, we defer to the
Tianjin Admiralty Court in China.
Boskalis also contends that while forum non conveniens
could properly be applied in the actions it filed in the various
districts, the doctrine does not apply to limitation-of-liability
actions. Although it has rational arguments to make on this
point, it fails to account for the case law. In federal courts, the
doctrine of forum non conveniens appears to have been "given
its earliest and most frequent expression in admiralty cases."
American Dredging Co. v. Miller, 510 U.S. 443, 449 (1994);
see also British Transp. Comm’n v. United States, 354 U.S.
129, 135 (1957) (stating in the context of a claim for limita-
tion of liability that "admiralty limitation [does not preclude]
other ordinary admiralty procedures. . . . [The rules] were not
intended to restrict parties claiming the benefit of the law, but
to aid them" (internal quotation marks omitted)); Karim v.
Finch Shipping Co., 265 F.3d 258, 268-71 (5th Cir. 2001)
(applying the forum non conveniens factors in the context of
a limitation-of-liability action); In re Geophysical Serv., 590
F. Supp. at 1361 (dismissing a limitation action on forum non
conveniens grounds).
In sum, MSC Shipping did not abuse the limitation-of-
liability process and the district court did not err in consider-
ing a motion to dismiss filed in the limitation-of-liability
COMPANIA NAVIERA v. KONINKLIJKE 17
action on the ground of forum non conveniens when the
limitation-of-liability action is part of a larger related complex
of actions filed in the United States.
III
Still, we are left with the question whether the criteria for
applying the forum non conveniens doctrine in this case were
met. On this issue, we will reverse the district court only
when there has been "a clear abuse of discretion." American
Dredging, 510 U.S. at 455 (quoting Piper Aircraft Co. v.
Reyno, 454 U.S. 235, 257 (1981)). "[W]here the [district]
court has considered all relevant public and private interest
factors, and where its balancing of these factors is reasonable,
its decision deserves substantial deference." Id. (quoting Piper
Aircraft, 454 U.S. at 257); see also Kontoulas v. A.H. Robins
Co., 745 F.2d 312, 314 (4th Cir. 1984).
The forum non conveniens doctrine is a common law doc-
trine now largely limited in federal court to cases where the
alternative forum for litigating the dispute is outside of the
United States. See, e.g., Sinochem Int’l, 549 U.S. at 435-36
(applying the doctrine in favor of the Guangzhou Admiralty
Court in China). Under the doctrine, a court may dismiss an
action in favor of an alternative forum when "the chosen
forum would establish . . . oppressiveness and vexation to a
defendant . . . out of all proportion to plaintiff’s convenience,
or when the chosen forum [is] inappropriate because of con-
siderations affecting the court’s own administration and legal
problems." American Dredging, 510 U.S. at 447-48 (alter-
ation in original) (quoting Piper Aircraft, 454 U.S. at 241)
(internal quotation marks omitted).
Granting a motion to dismiss for forum non conveniens
rests in the discretion of the district court exercised upon con-
sideration of numerous relevant factors, including (1) the ease
of access to sources of proof; (2) the availability of compul-
sory process for securing the attendance of unwilling wit-
18 COMPANIA NAVIERA v. KONINKLIJKE
nesses; (3) the costs of obtaining the attendance of witnesses;
(4) the ability to view premises; (5) the general facility and
cost of trying the case in the selected forum; and (6) the pub-
lic interest, including administrative difficulties, the local
interest of having localized controversies decided at home,
and the interest of trying cases where the substantive law
applies. See American Dredging, 510 U.S. at 448 (quoting
Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 508-09 (1947)).
Applying these factors, the district court made findings,
based on undisputed evidence, that no nexus,—whether the
parties, the witnesses, or the law—exists between the United
States and the collision at issue. In the words of the district
court, "[t]he United States has absolutely no connection to the
events giving rise to this action." The prospect of having to
interpret and apply Chinese law as it might pertain to liability
and the need for the many interpreters for the various
involved parties was further given as a reason supporting the
district court’s conclusion that the public interest weighed
overwhelmingly toward dismissal. Accordingly, it exercised
its discretion to dismiss this case under the doctrine of forum
non conveniens.
In Piper Aircraft, the Supreme Court allowed the dismissal
of a case, similar to that before us, based on the forum non
conveniens doctrine. 454 U.S. at 261. The action there arose
from an airplane accident in Scotland. The Court held that
where "the plaintiff is not an American citizen or resident, and
particularly when the foreign citizens seek to benefit from the
more liberal tort rules provided for the protection of citizens
and residents of the United States," dismissal is appropriate.
454 U.S. at 242. There the majority of witnesses and com-
plainants, as well as the debris from the accident, were located
in Scotland. Even though some of the defendants were Ameri-
cans, the Supreme Court held that that fact was insufficient to
render the district court’s dismissal order inappropriate. Id. at
260-61.
COMPANIA NAVIERA v. KONINKLIJKE 19
In this case, the facts weigh even more clearly in favor of
dismissal. The collision occurred in Chinese territorial waters
and was investigated by Chinese officials. Both ships were
arrested in China in furtherance of damage claims filed there.
The parties are foreign corporations—from Panama, Switzer-
land, and The Netherlands—and neither ship had any Ameri-
can national on board. All of the evidence is located in China
or some other foreign jurisdiction. And attempting to secure
the attendance of witnesses, procure relevant documents and
other evidence, and provide translators for virtually every wit-
ness able to attend would administratively tax the court sys-
tem, as would the effort at applying Chinese law.
These facts all weigh in favor of affirming the district
court’s ruling. Indeed none can be found to weigh in favor of
trying this case in the United States. Boskalis can hardly
maintain that its wish to apply U.S. limitation law is a suffi-
cient reason to justify trying the case in the United States. See
Piper Aircraft, 454 U.S. at 254-55. Thus, we conclude that the
district court did not abuse its discretion in ordering dismissal
of this action.
IV
Boskalis contends that the Tianjin Admiralty Court is not
an available and adequate alternative forum and that there-
fore the district court erred as a matter of law in dismissing
this action in favor of that forum under the doctrine of forum
non conveniens. It asserts:
The district court committed an error of law by dis-
missing MSC’s limitation proceeding in favor of an
alternative forum that is neither available nor ade-
quate. First, the court’s attempt to create an excep-
tion to the availability requirement for fraud or bad
faith is entirely without precedent in the doctrine of
forum non conveniens. The doctrine of forum non
20 COMPANIA NAVIERA v. KONINKLIJKE
conveniens is well defined, and does not include any
such exception.
***
Even if such an exception did exist, it would be inap-
plicable here, as Boskalis did not act fraudulently or
with bad faith, and the court did not find that it did.
MSC commenced two limitations proceedings that
were simultaneously open for claims, providing Bos-
kalis with a choice of fora in which to proceed. Bos-
kalis simply chose to proceed in Charleston rather
than China. This decision was clearly not a product
of fraud or bad faith, and thus should not be subject
to the court’s ill-founded exception to the availabil-
ity requirement of forum non conveniens.
It is true that the doctrine of forum non conveniens can be
applied only where another forum having jurisdiction is avail-
able at the time of the district court’s decision to resolve the
dispute. See Piper Aircraft, 454 U.S. at 254 n.22; Kontoulas,
745 F.2d at 315. An alternative forum exists "when the defen-
dant is amenable to process in the other jurisdiction." Piper
Aircraft, 454 U.S. at 254 n.22 (internal quotation marks omit-
ted). We have held, however, that if the statute of limitations
has expired in the alternative forum, the forum is not avail-
able, and the motion to dismiss based on forum non conve-
niens would not be appropriate. Kontoulas, 745 F.2d at 316.
But a difference in the law in the two forums—even where
the amount of potential recovery is drastically different—is
not sufficient to bar application of the forum non conveniens
doctrine. See Piper Aircraft, 454 U.S. at 254-55 (noting that
unless plaintiffs would "be deprived of any remedy or treated
unfairly," the alternative forum would not be considered inad-
equate).
In this case, MSC Shipping proffered evidence on the avail-
ability of the Chinese forum by noting that the forum had
COMPANIA NAVIERA v. KONINKLIJKE 21
jurisdiction over the parties and over the vessels. With respect
to whether a statute of limitations would bar a claim at the
time the district court dismissed this action, MSC Shipping
argued that Boskalis deliberately forfeited the availability of
a forum on this basis by electing not to proceed in China and
deliberately letting the time for filing claims in China pass.
Boskalis nonetheless argues now that the time for filing had
passed and that MSC Shipping cannot fulfill its burden of
showing the availability of the Chinese forum.
In addition to showing that Boskalis deliberately forfeited
the alternative forum, MSC Shipping also filed affidavits and
copies of Chinese statutes to show that the statute of limita-
tions had not in fact expired in China at the time it filed its
motion to dismiss. It recognized that the notice issued by the
Chinese court required that claims be filed in the limitation of
liability action by June 30, 2007, but it provided interpreta-
tions issued by the Supreme People’s Court of China that
have noted that as long as the statute of limitations in a civil
case is not raised as a defense, the court will not raise the
issue sua sponte. Provisions of the Supreme People’s Court
on Several Issues Concerning the Application of Statutes of
Limitation During the Trial of Civil Cases (promulgated by
the Supreme People’s Court, Aug. 21, 2008, effective Sept. 1,
2008), art. 3. MSC Shipping also showed that Chinese legal
scholars have noted that China’s system is not a strictly statu-
tory system and that judges are given sufficient leeway to
effectuate a just outcome. See Feng Jinwei & Zhang Decai,
Statute of Limitations: Law and Realty, China L. & Prac.,
Dec. 2000-Jan. 2001 (stating that "judge(s) will usually take
into consideration the facts of the particular case when decid-
ing whether to strictly enforce the time limits . . . . They do
not believe it is fair to decide against the rights holder simply
because it has failed to exercise its rights in time" and noting
that attempts at settlements or mediation will often be consid-
ered sufficient to satisfy the statute of limitations).
While it is thus not clear whether a statute of limitations
would have indeed barred Boskalis’ claim against the limita-
22 COMPANIA NAVIERA v. KONINKLIJKE
tion fund in China, the overriding fact in this case remains
that Boskalis has elected not to proceed in China—
presumably based on its assessment that it is unlikely to bene-
fit substantially in doing so—and accordingly has deliberately
allowed any deadline for filing claims there to pass. As coun-
sel acknowledged candidly to the district court, Boskalis
"made a reasoned decision after being notified that there was
a limitation of liability proceeding instituted in the courts of
China not to participate and let the statute of limitations run."
And based on that acknowledgment, the district court found
that Boskalis "knowingly and purposefully opted to miss the
deadline for filing their claims in [China]" because Boskalis
chose "not to participate in China." The district court there-
fore ruled that "[a] party should not be allowed to assert the
unavailability of an alternative forum when the unavailability
is a product of its own purposeful conduct."
We agree with the district court. In circumstances as these,
a claimant should not be heard to complain that an available
forum, having jurisdiction over the parties and over most of
the witnesses, is not available. Boskalis, relying on its assess-
ment that any recovery under Chinese law would be inade-
quate, made the considered decision to pass on the Chinese
proceedings and try to invoke U.S. law, which it thought
would be more favorable to it, yet recognizing that if it were
unable to invoke U.S. law, it would be unable to proceed in
China. In these circumstances, the district court properly
found an exception to the requirement of the forum non con-
veniens doctrine that the alternative forum be available. See
also Veba-Chemie A.G. v. M/V Getafix, 711 F.2d 1243, 1248
n.10 (5th Cir. 1983) (stating that where "the plaintiff’s plight
is of his own making—for instance, if the alternative forum
was no longer available at the time of dismissal as a result of
the deliberate choice of an inconvenient forum—the court
would be permitted to disregard this consideration and dis-
miss"); In re Bridgestone/Firestone, Inc., 420 F.3d 702, 706
(7th Cir. 2005) (remanding for further exploration the issue
whether the actions that made Mexico an unavailable forum
COMPANIA NAVIERA v. KONINKLIJKE 23
were taken in good faith); Castillo v. Shipping Corp. of India,
606 F. Supp. 497, 504 (S.D.N.Y. 1985) ("It would be a
strange world if a litigant could ‘bootstrap’ himself into a
New York court by missing the statute of limitations in the
proper forum").
Boskalis argues that in any event the remedy available in
the Tianjin Admiralty Court is inadequate because the limita-
tion fund in China is only $20 million whereas the limitation
fund in the United States is $111 million. Because its claim
is for $326 million and the Chinese subcharterer has already
filed a claim for $19.5 million, Boskalis claims that the com-
pensation it could expect to receive from proceeding in the
Chinese court would be inadequate.
The difference in the size of the limitation funds in China
and in the United States results from different methods of
computation. The amount of the Chinese limitation fund was
determined by the internationally accepted tonnage-formula
method by which the offending ship—alleged by Boskalis in
this case to be the MSC Joanna—is valued by assigning a
specific value per ton of the vessel’s pre-voyage tonnage, irre-
spective of the damage sustained by the vessel in the colli-
sion. Maritime Code of the People’s Republic of China
(promulgated by Order No. 64 of the President of the People’s
Republic of China, Nov. 7, 1992, effective July 1, 1993), art.
204-15. This method of computing the limitation fund is the
international norm for establishing limitation of liability
funds. See Limitation of Shipowners’ Liability—The Brussels
Convention of 1957, 68 Yale L.J. 1676, 1699 (1959) (stating
that the tonnage formula is the "mechanism most acceptable
to a maximum number of nations"); see also Convention on
Limitation of Liability for Maritime Claims (LLMC), Nov.
19, 1976, 16 I.L.M. 606; Protocol of 1996, May 3, 1996, 35
I.L.M. 1433. Thus, under the international norm for establish-
ing limitation of liability funds, the value of the fund does not
depend on the value of the ship surviving the wreck.
24 COMPANIA NAVIERA v. KONINKLIJKE
On the other hand, under United States law, the limitation
fund is determined by calculating the value of the vessel and
pending freight at the end of the voyage or after the wreck.
Thus, if a ship sinks with only a life preserver salvaged, the
limitation fund would consist of the value of the life pre-
server. On the other hand, if the ship survives the wreck sub-
stantially intact, as did the MSC Joanna, the fund would value
the entire ship, albeit lessened by the damage value of $10.5
million. See Fed. R. Civ. P. Admiralty Rule F(2); see also
Ruth L. Rickard, Comment, A New Role for Interest Analysis
in Admiralty Limitation of Liability Conflicts, 21 Tex. Int’l
L.J. 495, 498-99 (1986) (explaining the United States’ system
of post-voyage/wreck valuation).
At bottom, depending on the circumstances, the Chinese
valuation method could be more favorable than the United
States if the ship had sunk whereas the United States valua-
tion method would be more favorable if the ship were mostly
salvaged. Indeed, the United States method has been criticized
for this very reason. See Rickard, 21 Tex. Int’l L.J. at 499
("[The United States’] system of post-voyage valuation
creates anomalous results. The highest possible fund is cre-
ated in minor accidents that leave the ship seaworthy . . . . By
contrast, the lowest possible fund is created in major disasters,
cases that leave a sunken ship and perhaps a few lifeboats").
This difference in the method of calculating the limitation
funds indicates, in the circumstances of this case, that the U.S.
forum would be more favorable to Boskalis than would be a
Chinese forum. Indeed Boskalis argues that because of the
Chinese subcharterer’s claim, the Chinese priority laws would
result in a recovery in China of less than a million dollars.
MSC Shipping vigorously disputes this interpretation of Chi-
nese law, arguing that Boskalis might be entitled to a much
higher percentage of the Chinese fund. But we need not, and
surely should not, speculate on how Chinese courts might
resolve the claims against the limitation fund there. The
Supreme Court has made clear that appeals courts are not "to
COMPANIA NAVIERA v. KONINKLIJKE 25
compare the rights, remedies, and procedures available under
the law that would be applied in each forum" to determine
whether "the law applied by the alternative forum is as favor-
able to the plaintiff as that of the chosen forum." Piper Air-
craft, 454 U.S. at 251. To do so would defeat the intended
purpose of the forum non conveniens doctrine which "is
designed in part to help courts avoid conducting complex
exercises in comparative law." Id. (emphasis added). What we
can conclude is that the Chinese forum offers a remedy and
process for resolving the dispute—which happens to comport
with the international norm for doing so—and thus we should
not conduct a "complex exercise[ ] in comparative law" to
determine the exact difference Boskalis may be entitled to
between the different limitation funds. As the Supreme Court
has said, to do otherwise "would increase and further congest
already crowded courts" and result in adjudication of cases,
"even though none of the parties are American, and even
though there is absolutely no nexus between the subject mat-
ter of the litigation and the United States," simply because of
an unfavorable change in the law. Id. at 252, 252 n.17.
"Of course, if the remedy provided by the alternative forum
is so clearly inadequate or unsatisfactory that it is no remedy
at all, the unfavorable change in law may be given substantial
weight." Id. at 254. In the circumstances presented in Piper
Aircraft, the Supreme Court noted that even though Scottish
law did not afford recovery to the plaintiffs based on strict lia-
bility, as did U.S. law, and even though the damages might be
smaller, these differences did not indicate that a Scottish
forum was an inadequate forum. An inadequate forum based
on substantive law arises "where the alternative forum does
not permit litigation of the subject matter of the dispute." Id.
at 254 n.22. The Court summarized that a district court may
reject an alternative forum as inadequate based on a differ-
ence in law when the claimant "will be deprived of any rem-
edy or treated unfairly." Id. at 255 (emphasis added).
In this case, the Chinese forum provides a remedy, and
moreover one that is completely analogous to the remedy pro-
26 COMPANIA NAVIERA v. KONINKLIJKE
vided by a U.S. forum i.e. affording the trial of claims made
against a limitation fund—albeit computing the limitation
fund through a different, but not necessarily less adequate
method. If Boskalis were to succeed on its argument that the
difference in the method of computing a limitation fund is an
appropriate basis for finding inadequacy, it would have to
conclude likewise that an admiralty court in The Netherlands,
where it is based, and in most other seafaring nations would
also not be adequate forums, inasmuch as The Netherlands
maritime law, as well as the law of most other seafaring
nations, applies the same method of computing the limitation
fund as does the Chinese maritime law. See LLMC, 16 I.L.M.
606 (The Netherlands as signatory). Also, there is no indica-
tion that a Chinese admiralty court would treat Boskalis "un-
fairly." See also Sinochem Int’l, 549 U.S. at 432-36 (applying
forum non conveniens doctrine in favor of a Chinese admi-
ralty court).
We conclude that the district court did not abuse its sub-
stantial discretion in concluding that the District of South Car-
olina was not an appropriate forum in which to litigate the
issues of liability and damages for a collision that occurred in
China between ships owned by foreign corporations, particu-
larly in view of its conclusion—which is supported by the
record—that "[t]he United States has absolutely no connec-
tion to the events giving rise to this action."
We do, however, modify the district court’s judgment to
make it conditional on MSC Shipping’s not raising or assert-
ing a defense based on a statute of limitations or court-
imposed deadline in response to any claim made by Boskalis
against MSC Shipping in China. See Calavo Growers of Cali-
fornia v. Generali Belgium, 632 F.2d 963, 968 n.6 (2d Cir.
1980) ("[I]t is advisable to make any dismissal conditional in
nature").
V
The increasingly integrated markets served by global ship-
ping cry for an increasingly coherent application of maritime
COMPANIA NAVIERA v. KONINKLIJKE 27
law for the resolution of maritime disputes. Just as maritime
law grew dramatically during the Middle Ages with the new
growth of international trade, to become a reasonably homog-
enous compilation of principles, so now maritime law
demands refinement such that it becomes imbued in applica-
tion with yet greater mutual respect of seafaring nations for
each nation’s application of maritime law. More than ever,
parties need a system that responds predictably and fairly to
maritime disputes arising from international shipping and
trade. Thus, without hesitation, the Supreme Court deferred to
the Guangzhou Admiralty Court in China to resolve a dispute
over the legitimacy of a bill of lading that led to the arrest in
China of a ship that carried steel coils from Philadelphia to
China. Likewise, we readily affirm application of the doctrine
of forum non conveniens in deference to the Tianjin Admi-
ralty Court to resolve the liability and damages for a collision
occurring in Chinese waters between ships of foreign nations
when the Chinese authorities investigated the collision, the
Chinese court arrested both ships involved to aid disposition
of the claims made to that court, and no U.S. financial inter-
ests are directly implicated.
It will, at the same time, also become increasingly impor-
tant to the U.S. justice system for district courts to exercise
their jurisdiction with care when presented with suits between
non-Americans over collisions that occur in foreign waters
simply because the application of U.S. law is desired. U.S.
courts should be ready to rely on their wide discretion and
decline to exercise jurisdiction when doing so will avoid the
danger of U.S. courts becoming a place for resolving a mari-
time dispute only because U.S. law might provide a more
favorable outcome for one of the litigants. The circumstances
of this case provide a prime example of when a U.S. court
should show restraint. We accordingly affirm the judgment of
the district court, subject to the condition we imposed in Part
IV.
AFFIRMED AS MODIFIED
28 COMPANIA NAVIERA v. KONINKLIJKE
SHEDD, Circuit Judge, dissenting:
The district court granted MSC Shipping’s motion to dis-
miss this action — an action which MSC Shipping com-
menced — under the federal common-law doctrine of forum
non conveniens. After modifying the district court’s judg-
ment, the majority affirms. However, it is not clear that MSC
Shipping could properly move to dismiss its own action on
forum non conveniens grounds, but even if it could, the dis-
trict court erred in granting MSC Shipping’s motion because
it did so without first concluding that an alternative forum was
available at the time of its dismissal, which both Supreme
Court and Fourth Circuit case law require. Accordingly, I dis-
sent.
I
Under controlling precedent, a district court must make two
findings before it can dismiss an action on forum non conve-
niens grounds. First, it must determine that an alternative
forum exists at the time of its dismissal. Piper Aircraft Co. v.
Reyno, 454 U.S. 235, 254 n.22 (1981); Kontoulas v. A.H.
Robins Co., Inc., 745 F.2d 312, 315-16 (4th Cir. 1984). Sec-
ond, it must consider various public and private interest fac-
tors to determine whether to exercise its discretion and
dismiss the action in favor of the alternative forum. Gulf Oil
Corp. v. Gilbert, 330 U.S. 501, 505-09 (1947); Kontoulas,
745 F.2d at 315-16.1
1
For an alternative forum to "exist" within the meaning of the forum non
conveniens doctrine, a court must find that it is both available and ade-
quate. Kontoulas, 745 F.2d at 315-16. Because I conclude that the district
court erred by dismissing this action without first determining that an
alternative forum is available, I do not reach the question of whether the
alternative forum is adequate or whether the district court properly bal-
anced the public and private interest factors.
COMPANIA NAVIERA v. KONINKLIJKE 29
II
A.
As an initial matter, I am not convinced it was proper for
MSC Shipping to move to dismiss its own action on forum
non conveniens grounds. There is a presumption that the
forum chosen by the party that commenced the action is
appropriate, and the forum non conveniens doctrine provides
a mechanism by which the opposing party can overcome this
presumption. Sinochem Int’l Co. Ltd. v. Malaysia Int’l Ship-
ping Corp., 549 U.S. 422, 430 (2007); Gulf Oil, 330 U.S. at
505-09. Indeed, courts developed this doctrine in response to
the problem of a plaintiff choosing an inconvenient forum to
"‘vex,’ ‘harass,’ or ‘oppress’ the defendant," Gulf Oil, 330
U.S. at 508, and the burdens and presumptions that apply in
a forum non conveniens analysis are based on the fact that the
party who chose the current forum is not the one moving to
dismiss the action, see Sinochem, 549 U.S. at 430 ("A defen-
dant invoking forum non conveniens ordinarily bears a heavy
burden in opposing the plaintiff’s chosen forum."). Indeed, I
am unaware of any controlling authority that establishes a
party’s right to move to dismiss its own action on forum non
conveniens grounds.
B.
To the extent the majority’s decision to allow MSC Ship-
ping to dismiss its own action on forum non conveniens
grounds is influenced by its view that the equities in this case
favor MSC Shipping, I am not persuaded that this view is cor-
rect. For instance, the majority concludes that MSC Ship-
ping’s conduct was consistent with one of the purposes of the
U.S. Limitation of Liability Act because, after posting
$111,348,810 in security with the district court as required by
the Act and applicable rules, MSC Shipping used the Act to
obtain an injunction against Boskalis before eventually mov-
ing to dismiss the action. See Maj. Op., at 14-15. Simply
30 COMPANIA NAVIERA v. KONINKLIJKE
using the Act to obtain an injunction, however, does not make
MSC Shipping’s conduct consistent with the Act because
MSC Shipping’s conduct undercuts the more fundamental
purpose of the Act, which is to allow a court to adjudicate
claims against the full amount of the security posted. See, e.g.,
Maryland Cas. Co. v. Cushing, 347 U.S. 409, 414 (1954). By
moving to dismiss this action, MSC Shipping has effectively
used the Act to artificially limit a claimant’s available recov-
ery to less than 20 percent of the full fund.2
The majority also asserts that MSC Shipping’s only alterna-
tive to commencing this action was to appear in every
Boskalis-initiated attachment proceeding and file motions to
dismiss in each of those cases. Yet, MSC Shipping indicated
during oral argument that it could have commenced a limita-
tion proceeding in response to and in any one of Boskalis’s
pending attachment actions. Accordingly, MSC Shipping
could have used one of those proceedings to obtain an injunc-
tion preventing Boskalis from commencing or continuing to
litigate its other actions and then moved to dismiss the case
in favor of the Chinese forum on forum non conveniens
grounds. Not only would this course have served the interests
of judicial economy, by preventing the need for the district
court’s proceedings below, it would have allowed MSC Ship-
ping to move for a forum non conveniens dismissal from the
traditional posture of the party who did not commence the
action.
Furthermore, MSC Shipping only moved to dismiss this
action in favor of the Chinese forum after the deadline for fil-
ing claims against MSC Shipping in that forum passed; and
while the majority states that MSC Shipping asserted in its
complaint that it would move to dismiss this action, see Maj.
Op., at 7 (citing MSC Shipping Compl. at ¶ 20), the majority
2
As noted, MSC Shipping posted $111,348,810 in security with the dis-
trict court, but posted only $20,000,000 (approximately) with the Tianjin
Admiralty Court.
COMPANIA NAVIERA v. KONINKLIJKE 31
overstates the facts. MSC Shipping did not announce in its
complaint that it would move to dismiss this action, it only
reserved the right to do so. See MSC Shipping Compl. at ¶ 20.
Therefore, if the equities are at all relevant to determining
whether MSC Shipping could move to dismiss its own action
on forum non conveniens grounds, they do not appear to favor
MSC Shipping.
III
A.
Even assuming MSC Shipping could properly move to dis-
miss its own action on forum non conveniens grounds, the dis-
trict court abused its discretion in granting MSC Shipping’s
motion because it did so without first concluding that an alter-
native forum was available at the time of its dismissal. See
United States v. Delfino, 510 F.3d 468, 470 (4th Cir. 2007)
("A district court abuses its discretion when it . . . commits an
error of law."). As noted above, both Supreme Court and
Fourth Circuit precedents require a district court to determine
that an alternative forum is available at the time of its decision
before it can dismiss an action on forum non conveniens
grounds. Piper, 454 U.S. at 254 n.22; Kontoulas, 745 F.2d at
315-16. Controlling case law also makes it clear that the party
who moves for a dismissal on forum non conveniens grounds
bears the "heavy burden of showing" that an alternative forum
is available. Kontoulas, 745 F.2d at 316; see also Sinochem,
549 U.S. at 430 (stating that the defendant bears the "heavy
burden"). As the majority acknowledges, an alternative forum
is not available if, among other things, the statute of limita-
tions in the alternative forum has expired. Maj. Op., at 20; see
also Kontoulas, 745 F.2d at 316.
Here, the parties dispute whether a statute of limitations or
its equivalent rendered the Chinese forum unavailable at the
time of the district court’s ruling. According to Boskalis, the
deadline for commencing or joining an action against MSC
32 COMPANIA NAVIERA v. KONINKLIJKE
Shipping in China passed on June 30, 2007, which was before
the district court’s decision. In response, MSC Shipping
argues that China does not always follow filing deadlines and
therefore might permit Boskalis to join or commence an
action against it notwithstanding the expiration of the June 30
deadline. See Appellees’ Br. 26. However, Chinese maritime
procedure law and the notices issued by the Tianjin Maritime
Court support Boskalis’s position. See J.A. 105, 326, 333-34.
Thus, on this record, MSC Shipping clearly has not carried its
heavy burden of showing that the Chinese forum was avail-
able at the time of the district court’s decision. Therefore,
Supreme Court and Fourth Circuit case law provide that this
case cannot be dismissed on forum non conveniens grounds.
See Piper, 454 U.S. at 254 n.22; see also Kontoulas, 745 F.2d
at 315-16.
However, the majority does not require MSC Shipping to
meet its burden. Instead, after noting the parties’ differing
positions with respect to the availability of the Chinese forum,
the majority simply states that it is "not clear whether a statute
of limitations would have indeed barred Boskalis’ claim
against the limitation fund in China." Maj. Op., at 21-22. In
other words, the majority finds that it is not clear whether
MSC Shipping has carried its burden of showing the avail-
ability of the Chinese forum. Nonetheless, the majority
affirms the district court’s decision by adopting an exception
to the forum non conveniens doctrine, holding that an alterna-
tive forum does not need to be available in this case because
Boskalis could have joined the Chinese proceeding before the
June 30 deadline expired. I do not agree with the majority that
we should adopt and apply such an exception because, as
noted above, both Supreme Court and Fourth Circuit case law
clearly require that an alternative forum be available before a
case can be dismissed on forum non conveniens grounds. See,
e.g., Piper, 454 U.S. at 254 n.22; see also Kontoulas, 745
F.2d at 315-16. The majority’s decision thus represents a dra-
matic change from current law.
COMPANIA NAVIERA v. KONINKLIJKE 33
In addition to being a required element of the forum non
conveniens analysis, the availability requirement serves a vital
purpose and thus should not be lightly discarded. The
Supreme Court has repeatedly instructed that "federal courts
have a strict duty to exercise the jurisdiction that is conferred
upon them by Congress." Quackenbush v. Allstate Ins. Co.,
517 U.S. 706, 716 (1996); see also Deakins v. Monaghan, 484
U.S. 193, 203 (1988) ("[T]he federal courts have a virtually
unflagging obligation to exercise their jurisdiction." (quota-
tion marks omitted)). The forum non conveniens doctrine rep-
resents one of the narrow exceptions to this general
requirement because it allows a court to dismiss an action
even if, as here, subject matter jurisdiction is entirely proper.
See Gulf Oil, 330 U.S. at 504. However, one of the reasons
why we can use the forum non conveniens doctrine to dismiss
an action — even when we have jurisdiction — is because the
doctrine’s availability requirement helps ensure that a tribunal
in some alternative forum will be able to address the merits
of the parties’ dispute. See id. at 504-09; cf. Burford v. Sun
Oil Co., 319 U.S. 315, 332-34 (1943) (stating that a state
court’s concurrent jurisdiction counsels in favor of absten-
tion). Indeed, "if no other forum is available . . . it would be
exceedingly harsh to dismiss for forum non conveniens."
Veba-Chemie A.G. v. M/V Getafix, 711 F.2d 1243, 1248 (5th
Cir. 1983).
B.
To the extent some courts have created a "bad faith" excep-
tion to the availability requirement — under which a party’s
conduct can eliminate the requirement that an alternative
forum be available — and to the extent there is a suggestion
that Boskalis’s past conduct places this case within that
exception, there is nothing in the record to support such a
view. Both United States and Chinese law provided Boskalis
with options for attempting to recover losses associated with
the collision, and Boskalis simply elected not to pursue a rem-
edy in China. Similar decisions are made by litigants all the
34 COMPANIA NAVIERA v. KONINKLIJKE
time when they decide whether and where to commence an
action, and this alone does not show any bad faith by Bos-
kalis.
In any event, the three cases from other circuits that the
majority cites in support of its exception to the availability
requirement, see Maj. Op., at 22-23, are inapposite. They all
involve cases where courts have held or suggested that the
past conduct of the party who commenced the action can be
held against it in determining whether an alternative forum is
available.3 Thus, these three cases do not support considering
Boskalis’s conduct as a factor in deciding the forum non con-
veniens issue because Boskalis did not commence this action.
It merely responded to a complaint filed by MSC Shipping in
a forum of MSC Shipping’s choosing.4
C.
Additionally, while the majority modifies the district
court’s judgment to make it conditional on MSC Shipping not
"raising or asserting" a defense based on a statute of limita-
tions, Maj. Op., at 26, such a condition is not necessary under
the majority’s analysis.5 If, as the majority holds, the alterna-
3
While the forum non conveniens doctrine does not support considering
Boskalis’s conduct when determining the availability of an alternative
forum, there is some support for considering the motives of the party that
commences the action. As indicated above, courts developed the forum
non conveniens doctrine as a way of responding to actions commenced by
parties whose motives were to "‘vex,’ ‘harass,’ or ‘oppress’ the defen-
dant," Gulf Oil, 330 U.S. at 508. Thus, since the doctrine is "sensitive to
[a] plaintiff’s motive for choosing his forum," Veba-Chemie, 711 F.2d at
1248 n.10 (emphasis added), there is a basis for considering MSC Ship-
ping’s motives because it commenced this action.
4
Notably, the three cases the majority cites all involve application of the
forum non conveniens doctrine in the traditional procedural setting — i.e.,
where the defendant moves to dismiss an action that another party com-
menced — thus lending support for my position.
5
In Kontoulas, we did not reach the question of whether "conditional
dismissals" "were proper under the common law forum non conveniens
COMPANIA NAVIERA v. KONINKLIJKE 35
tive forum does not need to be available, then this condition
simply serves as a salve to soften the harshness of the majori-
ty’s new rule.
Moreover, Boskalis can take little comfort in this condition
because MSC Shipping itself has stated that "it is not a matter
for the parties to waive or extend the deadline for a claimant
to file a claim in a Chinese limitation action. Instead, the deci-
sion lies within the discretion of the Tianjin Admiralty
Court." Appellees’ Br. 50 (citation omitted). Consequently,
regardless of whether MSC Shipping "raise[s] or assert[s]" the
deadline as a defense, Boskalis may be unable to proceed
against MSC Shipping in China. If anything, the majority
should condition the dismissal on the June 30 deadline not
preventing Boskalis from commencing or joining an action
against MSC Shipping. However, this condition should not be
imposed unless MSC Shipping first carries its burden of
showing that the alternative forum was available. See Calavo
Growers of California v. Generali Belgium, 632 F.2d 963,
969 n.6 (2d Cir. 1980) ("[E]ven when the district court ‘justi-
fiably believes’ that there is an adequate alternative forum, it
is advisable to make any dismissal conditional in nature when
there is uncertainty or conflict between expert opinions with
regard to foreign jurisdictional law.").
IV
For the foregoing reasons, I dissent.
doctrine," and we stated that the moving party in that case "cited no
authority for such a conditional dismissal." Kontoulas, 745 F.2d at 316
n.10. I am not aware of any controlling authority since Kontoulas that
authorizes our use of conditional dismissals in this context.