First Circuit Holds That Lawsuit Between U.S. Citizens Over a Collision in the South Aegean Sea Belongs in a Stateside Federal Court

In Curtis v. Galakatos, No. 20-1846 (1st Cir. Nov. 29, 2021), the First Circuit reverses dismissal of a personal injury action on forum non conveniens grounds, where the parties are American citizens, but the accident took place in Greece.

In 2018, in the area of the Paros-Antiparos Strait, a boat owned by defendant Galakatos (M/V Galani) collided with a boat owned by one of the plaintiffs (M/V Marina), sinking the plaintiffs’ boat and leaving plaintiff Curtis with serious personal injuries. The accident was investigated by Greek authorities, which charged the defendant criminally “for provocation of a shipwreck and causing serious personal injury.” Plaintiffs sued defendant in the “federal court of Galakatos’s hometown,” Boston, alleging “maritime negligence, loss of consortium, and property damage.”

The defendant – who was not aboard his boat at the time of the accident – moved to dismiss on forum non conveniens grounds, principally because “nearly all of the identifiable witnesses to this incident other than the Plaintiffs reside in Greece.” The district court dismissed the action to be refiled in Greece.

The First Circuit reverses, holding that the district court abused its discretion in denying the plaintiffs their choice of forum. Although a plaintiff’s choice of forum gets a heavy preference in federal courts, the panel recognizes that the preference maybe overcome when the plaintiff’s chosen forum is “so inconvenient that transfer is needed to avoid serious unfairness.” A defendant may prevail on a forum non conveniens argument where an “adequate alternative forum exists” (plaintiffs conceded this prong) and that the balance of public and private interest factors “strongly favor litigating the claim in the second forum.”

The First Circuit agrees that there was no error in finding that the public interest factors weighed in favor of litigating in Greece because “the collision occurred in Greece and presumably ‘much of the relevant evidence is located there,’” plus that Greek law would apply to the collision.

But the First Circuit differs on the application of the private factors. As to those, the district “court emphasized that the accident occurring in Greece weighed heavily in favor of Greece, and that the Greek authorities had investigated – examining physical evidence and taking sworn testimony from witnesses,” particularly that only a Greek court would have power to compel testimony of Greek witnesses. But crucially, the defendant presented “insufficient evidence to support the purported residency of these twelve individuals.”

Regarding the defendant’s burden of proof on forum non conveniens, the panel discusses the key Supreme Court decision, Piper Aircraft Co. v. Reyno, 454 U.S. 235 (1981), involving a plane crash in the United Kingdom. “In finding that the defendants submitted ‘enough’” proof of the convenience to witnesses, “the high Court referred to the affidavits submitted by the defendants, particularly the one submitted by Piper Aircraft Co. . . .” in which Piper “identified, with some detail, the individuals it would call as witnesses in a trial.”

“The evidentiary support [defend] Galakatos offered up here is a far cry from that in Piper. First, it was undisputed in Piper that all the witnesses the defendant sought to call – save those U.S.-based-employee witnesses who would travel to Scotland at the defendant’s expense–were located in Scotland. The Piper Court thus could make the reasonable assumption that a Scottish court could compel those witnesses to testify. Here, [plaintiffs] have made no similar concession as to the residency of the witnesses Galakatos has identified. And, though we’ve scoured the record, we’ve found but one piece of evidence from Galakatos on this subject: Galakatos’s statement that ‘nearly all of the identifiable witnesses to this incident other than the Plaintiffs reside in Greece.’ Further, all we have to explain that allegation is his counsel’s ‘understanding’ (again without any factual basis) that the eleven individuals with seemingly Greek surnames are citizens of Greece and not, as [plaintiff] Cambouris was, merely vacationers.”

Defendant also failed to establish that such witnesses, regardless of citizenship, were unwilling to testify at trial. And “even assuming the witnesses were outside the reach of necessary Massachusetts compulsory process, Galakatos also failed to demonstrate why the proposed witnesses had any relevance to his case . . . . Galakatos submitted a list of names omitting any even generalized detail on their role in the underlying incident (whether eyewitness to the crash, first responder, or participant in the investigation). Yet he bore the burden of giving the district court ‘enough’ to evaluate the relative burdens related to the convenience of witnesses.”

Moreover, the First Circuit notes, the defendant had access to at least some of this information. “Galakatos had easy access to – at the very least–the location of at least six of the eleven individuals identified on the list. As the Port Authority’s investigation report makes clear, five of those individuals were aboard the Galani with Faroupos (the sixth) when the accident occurred. And although Galakatos stresses in his appellate papers that he is ‘not in regular communication with the eyewitnesses,’ it is clear Galakatos has at least some access to Faroupos: the Greek attorney hired by Galakatos’s counsel obtained the list of witnesses directly from Faroupos’s attorney in the criminal investigation.”

Against the paucity of the record about inconvenience to Greek witnesses, the inconvenience to plaintiffs was manifest, particularly the seriously-injured Curtis. “We also believe the district court gave inadequate consideration to the convenience of the plaintiffs’ witnesses, in particular, the plaintiff herself. The district court failed to take heed of the physical and emotional burden on Curtis in returning to Greece, as the plaintiffs requested it do.”

In closing, the panel suggests that the defendant may have bought trouble by opposing plaintiffs’ request for targeted discovery into forum non conveniens. “Galakatos’s position then was that he had given the district court enough information for it to rule in his favor. However, we conclude he did not, and given that it was his heavy burden to show forum non conveniens, and given his decision below to advocate against the development of a stronger factual record, we will leave him to shoulder the burden of the inadequacy of his evidentiary offerings.”

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