334 F. App'x 383

Reino de ESPAÑA, on its own behalf, and as trustee, Plaintiff-Counter-Defendant-Appellant-Cross-Appellee, v. ABSG CONSULTING, INC., f/k/a ABS Marine Services, Inc., ABS Group of Companies and the American Bureau of Shipping, Inc., Defendants-Counter-Claimants-Appellee-Cross-Appellants.

Nos. 08-0579-cv(L), 08-0754-cv(XAP).

United States Court of Appeals, Second Circuit.

June 12, 2009.

Abraham D. Sofaer (Juan A. Anduiza, Brian D. Starer, Squire Sanders & Dempsey LLP, on the brief), Stanford University, Stanford, CA, for Appellant.

*384Norman C. Kleinberg (Steven A. Hammond, Jeffrey R. Coleman, Amera Z. Chowhan, Hughes Hubbard & Reed LLP; John E. Grimmer, Brad Gandrup, Jr., John Grimmer & Associates, on the brief), Hughes Hubbard & Reed LLP, New York, NY, for Appellees.

David S. Jones, Assistant United States Attorney (Michael F. Hertz, Acting Assistant Attorney General; Sharon Swingle, Attorney, Appellate Staff, United States Department of Justice, Civil Division, on the brief), for Lev L. Dassin, United States Attorney for the Southern District of New York, New York, NY, for the United States, Thomas A. Telesca, Ruskin Moscou Faltischek, P.C., Uniondale, NY, for Oceana and the Natural Resources Defense Council, Submitting for Amici.

PRESENT: Hon. WILFRED FEINBERG, Hon. CHESTER J. STRAUB, and Hon. REENA RAGGI, Circuit Judges.

SUMMARY ORDER

Reino de España (“Spain”) sued defendants ABSG Consulting, Inc., et al. (“ABS”) under American general maritime and Spanish law for damages resulting from the M.T. Prestige oil spill. Spain now appeals an award of summary judgment based on the district court’s ruling that the International Convention on Civil Liability for Oil Pollution Damage, 973 U.N.T.S. 3, Nov. 29, 1969, as amended, 1956 U.N.T.S. 255, Nov. 27, 1992, (“the CLC”) deprived it of subject matter jurisdiction. See Reino de Espana v. Am. Bureau of Shipping, Inc., 528 F.Supp.2d 455 (S.D.N.Y.2008). ABS cross-appeals the district court’s August 4, 2004 dismissal of its counterclaims for indemnity and contribution as barred by the Foreign Sovereign Immunities Act (“FSIA”). See Reino de Espana v. Am. Bureau of Shipping, Inc., 328 F.Supp.2d 489 (S.D.N.Y.2004), reconsideration granted in part, No. 03 Civ. 3573, 2006 WL 2034632 (S.D.N.Y. July 14, 2006). We review the district court’s summary judgment award and the legal conclusions underlying its 12(b)(1) dismissal de novo; we review its 12(b)(1) factual findings for clear error. See Sledge v. Kooi, 564 F.3d 105, 108 (2d Cir.2009); Natural Res. Def. Council v. Johnson, 461 F.3d 164, 171 (2d Cir.2006). In so doing, we assume the parties’ familiarity with the facts and procedural history of this case, which we reference only as necessary to explain our decision.

1. Spain’s Appeal

Spain principally contends that the CLC cannot divest a federal court of subject matter jurisdiction because the United States has not ratified that treaty. We agree.2 See generally Medellin v. Texas, 552 U.S. 491, 128 S.Ct. 1346, 1356 & n. 2, 170 L.Ed.2d 190 (2008) (presuming treaty’s ratification when discussing its effect on domestic law).

That does not mean, however, that the district court is required here to exercise its jurisdiction. On remand, it may consider whether principles of forum non conve-niens or international comity support a discretionary decision not to exercise jurisdiction. See generally USHA (India), Ltd. v. Honeywell Int’l, Inc., 421 F.3d 129, 134 (2d Cir.2005) (describing three-step forum non conveniens analysis); JP Morgan Chase Bank v. Altos Hornos de Mexico, S.A. de C.V., 412 F.3d 418, 423-24 (2d Cir.2005) (describing discretionary doctrine of international comity). ABS’s willingness to stipulate to personal jurisdiction *385in an alternative forum is a relevant factor to any decimation of jurisdiction. See Jota v. Texaco, Inc., 157 F.3d 153, 159 (2d Cir.1998) (holding that dismissal for forum non conveniens was not appropriate absent defendant’s willingness to submit to jurisdiction of foreign court); id. at 160 (stating that court contemplating comity-based dismissal “should normally consider whether an adequate forum exists in the objecting nation and whether the defendant sought to be sued in the United States forum is subject to or has consented to the assertion of jurisdiction against it in the foreign forum”).3 So too is the possible inequity of a discretionary dismissal at this stage of the litigation. Cf. Blanco v. Banco Indus. de Venezuela, S.A., 997 F.2d 974, 984 (2d Cir.1993) (considering “delay[ed]” nature of forum non conveniens dismissal when conditioning it to protect intervenors’ interests).

If the district court concludes that dismissal under forum non conveniens or international comity is not warranted, it should then conduct a conflicts-of-law analysis to determine which law governs this ease. See Rationis Enters. Inc. of Panama v. Hyundai Mipo Dockyard Co., 426 F.3d 580, 586-88 (2d Cir.2005) (holding that Korean law governs); Carbotrade S.p.A. v. Bureau Veritas, 99 F.3d 86, 89-93 (2d Cir.1996) (holding that Greek law governs).

We need not, however, pursue the matter further. We conclude only that the district court erred in holding that the CLC deprived it of subject matter jurisdiction and we vacate its decision on that ground alone.4

2. ABS’s Cross-Appeal

In ruling that ABS’s counterclaims for indemnity and contribution5 did not satisfy the advanced FSIA counterclaim exception, see 28 U.S.C. § 1607(b), the district court principally reasoned that AB S’s pursuit of declaratory relief was sufficiently different in kind from Spain’s action because ABS sought “indemnification and contribution for judgments it has not yet incurred, in favor of parties not yet identified, on the basis of claims not yet plead.” *386Reino de Espana v. Am. Bureau of Shipping, Inc., 328 F.Supp.2d at 494.6

We disagree. While ABS’s counterclaims, if found to be unduly speculative, may be subject to dismissal on ease- or-controversy grounds, see Olin Corp. v. Consol. Aluminum Corp., 5 F.3d 10, 17 (2d Cir.1993) (holding that CERCLA claim seeking declaratory determination of future indemnity rights was not actionable because it was “speculative”), that possibility does not mean that they do not bear a “ ‘logical relationship’ ” to the transaction or occurrence that is the “ ‘subject matter of [Spain’s] claim,’ ” Cabiri v. Gov’t of the Republic of Ghana, 165 F.3d 193, 197 (2d Cir.1999) (quoting United States v. Aquavella, 615 F.2d 12, 22 (2d Cir.1979)). Spain’s suit against ABS raises questions of its alleged contributory negligence in handling the Prestige disaster — questions that implicate the extent of Spain’s duties to vessels in distress, and the extent to which its alleged breach of those duties caused or exacerbated its damages. ABS’s counterclaims raise similar, if not identical, issues of duty and causation, and it is therefore sensible, as a matter of fairness and judicial efficiency, to adjudicate them in tandem with Spain’s claims. See id. (observing that “transaction or occurrence” standard, which has been construed liberally by this court, looks to whether claims “ ‘are so logically connected that considerations of judicial economy and fairness dictate that all the issues be resolved in one lawsuit’” (quoting United States v. Aquavella, 615 F.2d at 22)). That result fully accords with the purpose behind 28 U.S.C. § 1607(b): to prevent a foreign sovereign from obtaining the benefit of litigating its claims in a United States court while simultaneously avoiding liability for counterclaims logically related to them. See id. (noting FSIA House Report’s rationale for exception).

We therefore VACATE the district court’s judgment dismissing Spain’s suit and ABS’s counterclaims, and we REMAND for further proceedings consistent with this decision.

España v. ABSG Consulting, Inc.
334 F. App'x 383

Case Details

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España v. ABSG Consulting, Inc.
Decision Date
Jun 12, 2009
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334 F. App'x 383

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United States

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