Opinion
Civ. No. 95-4169 (REF: ALL), Section "L" (3).
January 28, 2000.
FINDINGS OF FACT AND CONCLUSIONS OF LAW
I. BACKGROUND
Finch Shipping Company, Ltd. ("Finch") petitions this Court for exoneration and limitation of liability from damages sustained by Mr. Fazal Karim when he was injured while serving aboard Finch's vessel, the M/V Loussio. Karim answers contesting exoneration and limitation of liability because he claims his injuries were caused by the negligence of Finch or by the unseaworthiness of the M/V Loussio, of which Finch had privity and knowledge. In addition, Karim has filed a claim in the limitation proceeding seeking maintenance and cure as well as damages under the Jones Act and general maritime law.
This case came on for trial before the Court without a jury beginning on January 24 and ending on January 25, 2000. After hearing the testimony and reviewing the exhibits and the relevant record, the Court renders the following findings of fact and conclusions of law. To the extent a finding of fact constitutes a conclusion of law, the Court adopts it as such. To the extent a conclusion of law constitutes a finding of fact, the Court also adopts it as such.
II. INTRODUCTION
The transnational nature of maritime activities often produces complex questions of jurisdiction, applicable law, or proper venue. The present case raises issues in each of these areas. A Bangladeshi seaman injured on the high seas aboard a Panamanian flagged vessel, owned by a Maltese corporation with its base of operations in Pakistan and managed by a Danish company, has filed an answer and claim in a limitation proceeding instituted by the foreign vessel owner in the Eastern District of Louisiana. Does the Court have jurisdiction over the limitation proceeding? What law should the Court apply? What is the proper forum for this case? We begin our legal voyage with a review of the factual and procedural histories.
III. FACTUAL HISTORY
Fazal Karim, a Bangladeshi citizen residing near Chittagong, Bangladesh, joined the crew of the bulk cargo vessel, M/V Loussio, as a seaman/helmsman on January, 18, 1995. Prior to boarding the Panamanian flagged vessel in Rotterdam, Netherlands, Karim had passed an annual physical examination and had suffered no physical ailments. He signed shipping articles prepared and negotiated by the Bangladeshi government for the protection and benefit of Bangladeshi seamen.
Finch Shipping Company ("Finch") owned the M/V Loussio. Finch, a Maltese corporation whose principal shareholder, Mohammed Ilyas Shaik, is a Pakistani citizen currently residing in the United Arab Emirates, acquired the M/V Loussio from a Liberian corporation in January, 1995. Upon acquiring the M/V Loussio, Finch hired Overseas Shipping Agency of Chittagong, Bangladesh, to staff the crew of the vessel which consisted of Bangladeshi seaman and Pakistani officers. Finch also contracted with Alpina Shipping, a Danish management company based in Copenhagen, Denmark, to manage the daily operations of the vessel and to secure employment and voyage charterers for Finch.
The M/V Loussio engaged in "tramp" trade which involves transporting cargo at the direction of any interested charterer rather than committing to regular voyages for a particular charterer. The itinerary of the MN Loussio, therefore, depended upon who chartered the vessel and where the charterer directed the vessel to transport cargo. Finch did not decide where the M/V Loussio sailed.
On August 4, 1995, the M/V Loussio left Piraeus, Greece for a Gulf port to obtain a cargo of grain. While at sea off the coast of Bermuda, the crew prepared for the grain shipment by cleaning the holds of the vessel which had stored coal on the previous voyage from South Africa to Greece. This preparation included washing the sides and sweeping the bottom of the No. 7 hold.
At 8:00 a.m. on August 17, 1995, several crew members reentered cargo hold No. 7 to complete their cleaning operations. They remained in the hold until 10:00 a.m. when they suspended their activity and left the hold for morning tea. As the crew members departed, they tracked a mixture of coal dust and water on the ladderway.
To enter and exit the hold, crew members used a ladderway composed of three sections. The first section consisted of four rung-type ladders leading to several platform landings. In the second section, five step pads and a right-side hand railing allowed crewman to navigate a slope sheet that had been installed at a forty-five degree angle from the base of the third landing to prevent cargo from accumulating on the walls of the hold. The third section of the ladderway began at the base of the slope sheet and included a "pigeon hole" ladder that led vertically to the bottom of the hold. This portion of the ladderway consisted of steel sheet in which holes had been cut at twelve inch intervals to serve as rungs and handholds. Crewman used this ladderway system to access eight of the nine cargo holds in the M/V Loussio.
At 10:30 a.m., the crew members finished their morning tea and returned to cargo hold No. 7. Karim was the first crew member to reenter the hold. Wearing clean boots and gloves, Karim proceeded down the ladderway without incident until he reached the transition area between the slope sheet and the pigeon hole ladder. When making the transition from the sloped sheet to the pigeon hole ladder, his foot slipped causing him to lose his balance and fall some twenty to thirty feet to the bottom of the hold. Only Mokhlesur Rahman, a seaman/helmsman who followed Karim into the hold, witnessed the accident, and his view was partially obstructed.
Karim suffered severe injuries from his fall. He fractured his lumbar vertebrae and hip, pelvis, leg, ankle, heel, and wrist on his left side. Additionally, Karim suffered several herniated discs in his back and neck as well as a detached retina in his right eye.
Karim was moved by fellow crew members to a dry portion of the hold and eventually evacuated using a cargo hook to raise him vertically from the cargo hold on a canvas stretcher which lacked any support. The pain during this period was "unbearable." He was then taken to the ship's infirmary where he was placed on a cot. The second officer of the M/V Loussio, acting as ship's medical officer, monitored his vital signs and administered aspirin and other nonnarcotic medication to Karim because other pain medications, including codeine and morphine, had expired. Crew members visited Karim daily to turn and clean him. Because of his injuries, Karim was unable to use the bathroom independently and had to urinate and defecate with the help of crew members who came to his cot.
Captain Mohammed Yosuf notified the owner and manager of the vessel of Karim's situation and contacted the international medical service, C.I.R.M. Medical Italia, by telex for assistance. Although advised by telex from doctors in Rome to evacuate Karim, Captain Yosuf could not obtain helicopter service from Bermuda because of an impending tropical storm. Captain Yosuf chose to proceed passed the Bahamas and not to transfer Karim to Bermuda on a smaller vessel or to seek treatment in the Bahamas or Florida. Following discussions with the Coast Guard and doctors from C.I.R.M., Captain Yosuf directed the vessel to its New Orleans destination nine days hence. Throughout this time, Karim endured excruciating pain. His ordeal during this nine day voyage to New Orleans was a window into Hell.
Up to this point, the United States had no connection to the chain of events surrounding Karim's injury or treatment. The matter involved injuries to a Bangladeshi seaman serving aboard a Panamanian flagged vessel sailing on the high seas of the Atlantic Ocean. As mentioned, the vessel was owned by a Maltese corporation with operations in Pakistan and was managed by a Danish company. Only when Mr. Karim was evacuated by helicopter to Jo Ellen Smith Hospital in Algiers, Louisiana, upon the arrival of the vessel in New Orleans, did the United States become involved. This involvement consisted of first medical services and next legal process. We first turn to the latter.
IV. PROCEDURAL HISTORY
The legal history of this case began on November 30, 1995 when Karim and his wife brought suit against Finch, Alpina Shipping, and several other parties in the Civil District Court for the Parish of Orleans, State of Louisiana.
Karim first invoked the protections of this Court on December 5, 1995 when he sought to enjoin the Immigration and Naturalization Service from deporting him because of his debilitated condition and urgent need for medical care. (Civil Action No. 95-4021). The Court granted Karim's request for a temporary restraining order on December 5, 1995 and issued a preliminary injunction on December 15, 1995 preventing his deportation. On April 10, 1997, the Court dissolved the preliminary injunction finding that Karim's medical condition had improved and he was capable of travel. The Fifth Circuit Court of Appeals denied Karim's request for a stay pending his appeal. The preliminary injunction ended on April 15, 1997, and Karim was returned to Bangladesh.
On April 3, 1996, one year before Karim's return to Bangladesh, Finch instituted a limitation of liability proceeding in this pursuant to 46 U.S.C. § 181 et seq (Civil Action No. 96-1175). The Court entered a monition and concursus restraining the prosecution of any state court claims and requiring all parties with claims against Finch to direct them to this Court. Karim filed an answer in this proceeding contesting Finch's right to exoneration and limitation and sought damages for his injuries under the Jones Act, 46 U.S.C. § 688, and general maritime law of the United States. On October 16, 1996, this Court stayed the limitation proceeding and lifted the monition, and after receiving an appropriate stipulation, allowed Karim to pursue his claims against Finch in state court while at the same time preserving Finch's right to seek limitation in this Court.
Karim has pursued other litigation in this Court. On December 15, 1995, he filed an action against the M/V Loussio in rem, Finch, and several additional defendants (Civil Action No. 95-4169). On December 20, 1995, Finch posted a security bond for the M/V Loussio and the vessel was released from arrest on December 21, 1995 after plaintiffs counsel had an opportunity to conduct discovery. In April, 1997, the Court granted Karim's motion to voluntarily dismiss his claims and entered a judgment in favor of the defendants, thereby closing Civil Action No. 95-4169. The Fifth Circuit Court of Appeals affirmed this ruling on March 22, 1999. See Karim v. Finch Shipping, 177 F.3d 978 (5th Cir. 1999).
On August 2, 1996, Karim dismissed his in personam claims against Finch and its insurer, Ocean Marine Mutual Assurance Company, but retained the in rem claims in this Court. On September 17, 1996, Karim dismissed the claims against the remaining defendants in this Court and in state court. Thus, multiple claims no longer existed.
On July 9, 1997, the Civil District Court for the Parish of Orleans found that Finch had insufficient contacts with Louisiana to allow that court to exercise personal jurisdiction over it. The Fourth Circuit Court of Appeals affirmed the ruling of the civil district court. See Karim v. Finch Shipping Co., Ltd., 718 So.2d 572 (La.App. 4 Cir. 1998). The Louisiana Supreme Court denied review of the appellate court decision. See Karim v. Finch Shipping Co., Ltd., 729 So.2d 568 (La. 1998).
The limitation proceeding initiated by Finch on April 3, 1996 remains the only surviving action in this case (Civil Action No. 96-1175). On May 17, 1999, Finch moved to dismiss its claim for limitation on the grounds of lack of personal jurisdiction, res judicata, and forum non conveniens. Alternatively, Finch moved for summary judgment on Karim's penalty wage claim brought pursuant to 46 U.S.C. § 10313. Finch's motion to dismiss its limitation proceeding was denied. Karim had filed an answer and claim in response to Finch's voluntary, albeit defensive, petition for exoneration and limitation of liability. The Court found that it was inappropriate to allow Finch to unilaterally dismiss the proceeding into which an answer and claim had been filed. The Court, however, granted summary judgment on Karim's penalty wage claim and dismissed that portion of the suit.
Karim brought an additional complaint against Finch and its insurer in this Court on August 17, 1998 for claims similar to those made in its original federal court action (Civil Action No. 95-4169). Considering the deadline for filing claims set in the Court's April 4, 1996 monition in the limitation proceeding (Civil Action No. 96-1175), the Court dismissed Karim's claims filed in Civil Action No. 98-2437 and entered a judgment on December 29, 1998.
While Finch raised its exoneration and limitation claim in defense of potential claims against it, Finch voluntarily chose to invoke the protections of this Court and correspondingly subject itself to this Court's jurisdiction. In December, 1998, the Court denied additional claims by Karim in federal court because of the monition and concursus entered by the Court on Finch's behalf (Civil Action No. 98-2437). See supra note 3.
The Court now considers the limitation proceeding brought by Finch and the answer and claim filed in this proceeding by Karim.
The Court dismissed Karim's wife's claims for lack of evidence and proof.
V. JURISDICTION
Limitation of a ship owner's liability is a universal concept among nations that recognize the potentially perilous nature of maritime transportation. United States courts initially rejected the idea of limitation of liability, but Congress adopted the concept with the rise of the American merchant marine. See Grant Gilmore Charles L. Black, Jr., The Law of Admiralty 818-19 (2nd ed. 1975); see also The Rebecca, 20 F.Cas. 373 (Case No. 11,619) (D. Me. 1831).In the mid-Nineteenth Century, Congress passed the original Limitation of Vessel Owner's Liability Act (the "Limitation Act") to encourage shipbuilding and investment in this industry. See Act of Mar. 3, 1851, ch. 43, § 1, 9 Stat. 635 (current version at 46 U.S.C. § 181, et seq. (1999)); Beiswenger Enterprises Corp. v. Carletta, 86 F.3d 1032, 1033-34 (11th Cir. 1996). Under this Act, a vessel owner when faced with liability for a maritime accident may invoke the jurisdiction of a federal court by posting adequate security and filing a petition for limitation of liability. See 46 U.S.C. § 183. The security serves as the res which gives the Court in rem jurisdiction. Provided that the accident in question occurred without the vessel owner's "privity or knowledge," the Limitation Act limits the owner's liability to the value of the owner's interest in the vessel and its pending freight. Id. The tragic sinking of the Titanic established the rule that foreign vessel owners may also seek relief under the United States Limitation Act regardless of where the accident occurred. See Ocean Steam Navigation Co. Ltd. v. Mellor (The Titanic), 233 U.S. 718, 731 (1914).
Federal district courts have exclusive jurisdiction to determine whether a vessel owner is entitled to exoneration from or limitation of liability. See 46 U.S.C. § 185; Fed.R.Civ.P. Rule F; Langes v. Green, 282 U.S. 531, 540 (1931). After a vessel owner deposits with the district court an amount representing the value of the vessel and its freight (the limitation fund), the district court upon request stays all related claims against the vessel owner pending in other forums and directs all potential claimants to file their claims before the district court within a specific period of time. See 46 U.S.C. § 185; Fed.R.Civ.P. Rule F(3)-(4). Once the damage claims have been filed, the court proceeds to resolve the exoneration and limitation claim, and if appropriate, distributes the proceeds of the limitation fund.
In the present case, Finch filed for exoneration and limitation and posted a bond. This gave the Court a res over which to exercise in rem jurisdiction. Finch now argues that this Court no longer retains jurisdiction over its limitation action. Because Karim chose to pursue his claims in state court, and that court dismissed his claims for lack of personal jurisdiction, Finch contends there is no need to continue with its limitation proceeding.
Finch's argument misses the mark. Karim's claims in state court were in personam claims. The state court did not consider the merits of the claims and only held that it had no in personam jurisdiction. The limitation proceeding in this Court, however, is an in rem proceeding. The Court has in rem jurisdiction over the res or bond which was posted by Finch when it instituted its limitation action. The fact that a state court, or for that matter even this Court, lacks in personam jurisdiction does not deprive this Court of its in rem jurisdiction.
It now appears that Finch has changed its mind and would prefer to abandon its limitation proceeding without prejudice and quietly float away. The Court cannot permit this. When Finch filed for limitation, it exercised the Court's injunctive powers to prohibit the filing of any claims against it and to stay all claims previously filed outside of the limitation proceeding. Finch's action stopped Karim from proceeding in another forum and required him to file an answer and a claim in this limitation proceeding. This answer and claim must now be processed. It is anomalous that Finch, who originally sought a safe harbor by invoking United States law, now argues that United States law should not apply. This Court has a responsibility to provide a complete remedy to satisfy the answers and claims filed in Finch's limitation proceeding pursuant to its requested monition. See Just v. Chambers, 312 U.S. 383, 386-87 (1941); Hartford Accident Indemnity Co. v. Southern Pacific Co., 273 U.S. 207, 217 (1927).
In moving forward in this limitation proceeding, the Court applies United States law because limitation is a procedural right governed by the law of the forum. See Mellor, 233 U.S. at 733. Two questions must be answered to determine whether Finch is entitled to limit its liability in this case. "First, the court must determine what acts of negligence or conditions of unseaworthiness caused the accident. Second, the court must determine whether the shipowner had knowledge or privity of those same acts of negligence or unseaworthiness." Beiswenger Enterprises Corp., 86 F.3d at 1036. The damaged claimant bears the initial burden of establishing liability and the vessel owner then bears the burden of establishing lack of privity and knowledge.
The facts reveal that as Karim descended the ladderway, he reached the transition between the step portion of the ladder and the pigeon hole portion of the ladder. With his left foot on the last step and his right foot in the pigeon hole, Karim testified that he caught his right hand in a bent portion of the hand rail. While attempting to free his right hand, he leaned forward and his left foot slipped on wet coal dust. He lost balance and fell. A fellow crew member, who was on the ladder and saw Karim fall, testified that Karim had passed the hand rail portion of the ladder when his foot slipped, causing him to lose his balance and fall. Whether Karim's hand became stuck in the portion of the ladder is uncertain, but it is certain that his foot slipped due to the slippery condition of the ladder steps and that this was the proximate cause of his fall.
This condition resulted from the negligent actions of fellow crew members in tracking coal dust on to the rungs of the ladder or failing to remove it. This circumstance also rendered the ladder unseaworthy. This negligent and unseaworthy condition, however, was without privity or knowledge of Finch. Thus, the answers to the above questions are that Karim's injuries were caused by Finch's negligence or the vessel's unseaworthiness and that Finch had no privity or knowledge of the negligent acts and unseaworthiness. Therefore, Finch's claims for exoneration are denied, but limitation is granted. This conclusion, however, does not end this legal voyage. This Court has a responsibility with regard to distribution of the limitation fund.
VI. CHOICE OF LAW
While United States law governs the procedural issues of the limitation proceeding, this Court must decide what substantive law applies to the underlying cause of action. The fact that United States law determines limitation does not automatically mean that United States law should supply the substantive law for the underlying claim. See Mellor, 233 U.S. at 732-34 (applying United States law for limitation and British law to the underlying tort claim). The nations implicated in this case are truly diverse; they include: Bangladesh, Denmark, Malta, Panama, and Pakistan. Mr. Karim insists that United States law should apply as the law of the forum while Finch contends that the law of Bangladesh or another nation implicated in the case should govern the underlying substantive dispute.
The Court decides a choice of law inquiry in a maritime injury case by following the Lauritzen-Rhoditis test. See Hellenic Lines, Ltd. v. Rhoditis, 398 U.S. 306 (1970); Larsen v. Lauritzen, 345 U.S. 571 (1953). Under the Lauritzen-Rhoditis test, the Court considers several factors to determine what law applies: (1) the location of the injury, (2) the law of the flag, (3) the domicile of the injured party, (4) the allegiance of the shipowner, (5) the place of the contract, (6) the inaccessibility of a foreign forum, (7) the law of the forum, and (8) the base of operations of the shipowner. See Coats v. Penrod Drilling Corp., 61 F.3d 1113, 1119 (5th Cir. 1995). "The test is not a mechanical one in which the court simply counts the relevant contacts; instead, the significance of each factor must be considered within the particular context of the claim and the national interest that might be served by the application of United States law." Fogelman v. ARAMCO, 920 F.2d 278, 282 (5th Cir. 1991)
In this case, the injury occurred on the high seas off the coast of Bermuda. The vessel flew a Panamanian flag and was owned by a Maltese corporation which maintained a base of operations in Pakistan. Karim is a resident and citizen of Bangladesh who contracted with Finch when signing shipping articles in Bangladesh. The Bangladesh government solicited and negotiated Karim's employment on the vessel. In addition, the Shipping Articles afforded Karim a choice of pursuing a claim under Bangladeshi worker's compensation laws or instituting a civil suit for damages. See Def.'s Ex. 1. Furthermore, Karim, who is permanently disabled from seaman's work, presently resides in Bangladesh. Bangladesh clearly has a greater interest than any other nation involved in this dispute.
While Karim contests that the United States has at least as great of an interest as Bangladesh because it is the host forum, the Court finds that the relationship of the United States to this case is merely fortuitous. The vessel could have docked in Bermuda or the Bahamas. The fact that she came to New Orleans instead cannot, in and of itself, be the basis for determining the substantive law. If this were the case, the choice of law analysis directed by the Supreme Court in the Lauritzen-Rhoditis test would prove meaningless. "[F]oreign law applies because American law clearly does not." Gonzalez v. Naviera Neptuno A.A., 832 F.2d 876, 880 (5th Cir. 1987). Because Bangladesh's interest predominates over those of the other involved nations, its law should apply to Karim's tort claims.
It is tempting at this point for the Court to simply close this case, i.e. dismiss it with a conditional transfer to a Bangladeshi court. See Baris v. Sulpicio Lines, Inc., 932 F.2d 1540, 1551 (5th Cir. 1991) (holding that courts should impose conditions on the transfer of cases to other forums that include assurances that the plaintiff will be able to bring their claim in the receiving jurisdiction). After all, everything must end, particularly a four year-old case. Moreover, the prospect of divining the applicable Bangladeshi law seems daunting. But, is transfer the appropriate action in this case?
VII. FORUM NON CONVENIENS
Finch argues that this Court is not the most convenient forum to entertain Karim's claims; and therefore, the case should be dismissed on the grounds of forum non conveniens. The doctrine of forum non conveniens rests upon a court's inherent power to control the parties and cases before it and to prevent its process from becoming an instrument of abuse or injustice. Through this power, a federal district court may decline to exercise its jurisdiction, even though the court has jurisdiction and venue, when it appears that the convenience of the parties and the court and the interests of justice indicate that the case should be tried in another forum. See Piper Aircraft Co. v. Reyno, 454 U.S. 235 (1981); Koster v. Lumbermen's Mutual Cas. Co., 330 U.S. 518 (1947); Gulf Oil Corp. v. Gilbert, 330 U.S. 501 (1947); In Re Air Crash Disaster Near New Orleans, LA, 821 F.2d 1147, 1162 (5th Cir. 1987). The doctrine arose in the area of maritime law, but it is now applied in a wide range of cases in both federal and state courts. See generally Edward L. Barrett, The Doctrine of Forum Non Conveniens, 35 CAL. L. REV. 380 (1947); Alexander Bickel, The Doctrine of Forum Non Conveniens as Applied to Federal Courts in Matters of Admiralty, 35 CORNELL L. Q. 12 (1949); Michael Butterworth, Forum Non Conveniens — The Fifth Circuit's New Test Collides with Admiralty Law, 13 TUL. MAR. L.J. 179 (1988). Under the forum non conveniens doctrine, the moving party bears the burden of establishing that an adequate and available forum exists as to the parties, and that both private and public interests weigh heavily on the side of trial in the foreign forum. See In Re Air Crash Disaster Near New Orleans, LA, 821 F.2d at 1164.
At first blush, this case appears appropriate for dismissal on the grounds of forum non conveniens. The case, after all, involves a Bangladeshi plaintiff injured on the high seas aboard a Panamanian flagged vessel owned by a Maltese corporation with its base of operations in Pakistan. The United States became involved in this case only after Karim was treated here for his injuries which treatment began more than a week after his accident. On the other hand, the parties in this case have been before this Court for more than four years in several different causes of action. Much of this time was spent litigating in state court and preparing for and trying the limitation proceeding which Finch filed in this Court. Finch made a timely motion to dismiss for forum non conveniens, but the Court could not consider the issue of forum non conveniens until Finch's claim for limitation of liability was resolved. This Court was the most convenient forum to resolve limitation issues because a limitation proceeding is governed by the law of the forum. See Mellor, 233 U.S. at 733-34. Now that the question of exoneration and limitation of liability has been resolved, the Court may focus on the forum non conveniens issues.
While Bangladesh at one time may have been an available, adequate and convenient forum to try the present case, the situation has changed. First, consider the private interest factors. The vessel itself has been scrapped. She no longer exists. The photographs and video-recordings that memorialize her for this litigation are kept here and were made by witnesses available here. The only marine surveyor who saw and inspected the vessel resides here. Depositions of all the fact witnesses have been taken in this proceeding. Many of these witnesses are no longer accessible. Counsel for both parties are based in this forum, and a transfer of this case to another forum would entail tremendous expense and logistical prowess from both parties since much of the evidence would have to be translated and reassembled in accordance with other procedures. Finally, the limitation case has already been tried in this Court and all of the evidence is in this Court's record.
Next, consider the public interest factors. The parties have litigated before this Court for more than four years. Although the Court finds that it must apply the law of Bangladesh to substantive claims of this litigation, "the need to apply foreign law is not alone sufficient to dismiss under the doctrine of foreign non conveniens." R. Maganlal Co. v. M. G. Chemical Co., Inc., 942 F.2d 164, 169 (2nd Cir. 1991). Both the private and public factors favor litigation in this forum. Moreover, the Court also notes that Finch, the only remaining defendant in this case, is a defunct corporation that no longer exists. Finch thus could not be served, could not participate in litigation, nor could Finch satisfy any judgment against it in another court. Karim only may recover from Finch in this Court because of the security Finch posted in this proceeding. If the Court removes this case to another jurisdiction, it may well remove any possibility Karim has for executing a potential judgment against Finch. Thus, there is a serious question as to whether a Bangladeshi forum is available and adequate to resolve the issues in this case, and the defendant has failed to carry its burden in this regard. Such a situation dictates keeping the case in this Court. See In Re Air Crash Disaster Near New Orleans, LA, 821 F.2d at 1165.
Therefore, grudgingly, the Court finds that both the private and public interest factors demonstrate that no other forum is adequate, available or more convenient than this Court to entertain the present litigation. This Court will, therefore, resolve this matter pursuant to Bangladesh law. See In re Oil Spill by the Amoco Cadiz, 954 F.2d 1279, 1324-25 (7th Cir. 1992) (holding that a shipowner may argue foreign substantive law even when its claim for exoneration and limitation liability is denied).
Pursuant to Rule 44.1 of the Federal Rules of Civil Procedure, a hearing will be set to allow counsel for both parties to present relevant material, sources, and testimony concerning the applicable elements of damage available to Karim and the appropriate quantum for these elements under the law of Bangladesh.
For a discussion of the history of Rule 44.1 see 9 Charles Alan Charles R. Miller, Federal Practice and Procedure § 2441 (1999).