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Owners of fishing vessel involved in high seas collision seek dismissal of Florida lawsuit

F/V American Eagle
“Virtually all evidence and witnesses” are in New Zealand
fili@samoanews.com

Pago Pago, AMERICAN SAMOA — With a pending lawsuit in New Zealand and litigation first filed in American Samoa, the owners of the US purse seiner, American Eagle, are seeking dismissal of a multi-million lawsuit against the company at the federal court in Tampa, Florida, according to federal court document.

The defendants American Eagle Fishing LLC, a Florida based company and its affiliates argue that “virtually all evidence and witnesses” relating to damages to its fishing vessel — which allegedly collided with another US purse seiner, F/V Koorale — are in New Zealand.

F/V Koorale owner, M & F Fishing, Inc., a Nevada corporation, filed the lawsuit in February this year at the federal court in Tampa, seeking $20.5 million in property damage and consequential economic harm arising from a June 17, 2019 collision on the high seas, more than 1,000 miles from Pago Pago.

The plaintiff alleged that the collision was caused by American Eagle, which “struck the Koorale's port side bow quarter at full or near full speed, causing the Koorale severe damage.” (See Samoa News edition Feb. 21 for details.)

Early this month the defendants —  American Eagle Fishing LLC and Traditional Mariner — filed a 26-page motion to dismiss the federal action “to a more convenient forum,” New Zealand, “based on forum non conveniens.”

(Forum non conveniens is a discretionary power that allows courts to dismiss a case where another court, or forum, is much better suited to hear the case, according to Cornell Law School website.)

“Alternatively, this District Court should stay this action in favor of the ongoing foreign litigation in New Zealand or the first-filed litigation in American Samoa,” the defendants said and provided more than 150 pages of exhibits and supporting documents from American Samoa and New Zealand.

The defendants explained that this case involves two tuna fishing vessels, the American Eagle and Koorale, that collided in the Eastern Pacific Ocean. Both vessels were crewed primarily by foreign seamen and the liability fact witnesses are located across nearly every continent and country in the world.

None of them reside in Florida, according to the defendants arguing that after the collision, both vessels visited American Samoa before commencing repairs in New Zealand.

“As a result, virtually all evidence and witnesses related to damages are in New Zealand” — where the defendants “instituted a lawsuit” against M&F Fishing and the Koorale,” the defendants explained.

“Rather than counterclaim and proceed in one jurisdiction,” M&F Fishing filed suit in American Samoa against American Eagle Fishing and Tradition Mariner, “in personam”, and against the American Eagle vessel “in rem,” according to the defendants, who note that M&F Fishing later dismissed its in “personam claim” in American Samoa, but not its “in rem claim”, and then refiled this current action at the Tampa federal court.

(In personam — personal — jurisdiction is the authority over a person, and in rem — property — is the authority over property.)

The defendants explained that Tampa “may appear superficially convenient” because American Eagle Fishing and Tradition Mariner are technically “headquartered” at Tampa, but the day-to-day operations of the fishing fleet is managed in an office in California, not Florida.

“When examining the key fact witnesses and key documents, none are in Florida. Instead, the one central location for this dispute is where suit was initially commenced” in New Zealand on Nov. 27, 2019 — shortly after the collision, the defendants argued.

The motion explained that New Zealand was chosen because it is the most convenient forum. Additionally, New Zealand has statutes, common law, regulations, and remedies available to litigate a maritime law action, including collisions, and to provide appropriate remedies.

The remedies M&F Fishing is seeking against the defendants at the federal court are the same type of remedies the defendants are seeking against M&F Fishing in New Zealand.

The defendants also said that the American Samoa suits were filed on Dec. 12, 2019, more than two weeks after the New Zealand proceeding was commenced. And the American Samoan proceedings involve issues and parties significantly common to the federal suit.

According to the defendants, neither of the American Samoa suits have advanced. Because the American Eagle vessel is not in American Samoa, M&F Fishing has not been able to serve the “in rem suit”.

However, “M&F Fishing intends to continue to pursue its in rem claim in American Samoa in anticipation of the American Eagle’s expected return to that jurisdiction, in order to secure its claim,” said the defendant’s citing court documents from American Samoa.

The defendants claimed that M&F Fishing voluntarily dismissed the in personam suit in American Samoa due to anticipated procedural challenges from American Eagle Fishing and Tradition Mariner — improper service and lack of personal jurisdiction — regarding the American Samoa venue.

In its arguments at the federal court, the defendants notes that the US Supreme Court instructs district courts to analyze whether to keep or dismiss a case under “forum non conveniens” based on where it would be most convenient to litigate the action.

According to the defendants, New Zealand — whose courts are competent forums and similar to US law — “is the most convenient forum, far more convenient than Tampa, and is an adequate alternative forum.”