author: LEVAL, District Judge.

text:
    Pamela McNAIR, individually and on behalf of all others similarly situated, Plaintiff, v. NEW YORK CITY HOUSING AUTHORITY, Joseph J. Christian, individually and in his capacity as Chairman of the New York City Housing Authority; Walter S. Fried and Blanca G. Cedeno, individually and in their capacities as members of the New York Housing Authority, Defendants.
    No. 81 Civ. 3797 (PNL).
    United States District Court, S.D. New York.
    July 12, 1985.
    John E. Kirklin, The Legal Aid Society, Director of Litigation, Civil Appeals & Law Reform Unit, New York City (James C. Francis IV, New York City, of counsel), David Goldfarb, Attorney-in-Charge, Bronx Neighborhood Office, New York City (David H. Mitchell, Stacy Cromidas, New York City, of counsel), Conrad A. Johnson, Attorney-in-Charge, Harlem Neighborhood Office, New York City (Diane Dixon, New York City, of counsel), John C. Gray, Jr., Brooklyn Legal Services, Corporation “B”, Brooklyn, N.Y. (Roger J. Maldonado, Brooklyn, N.Y., of counsel), for plaintiffs.
    Charles E. Williams, III, Gen. Counsel, New York City Housing Authority, New York City (Raphael Samuel, New York City, of counsel), for defendants.
   FINDINGS OF FACT AND CONCLUSIONS OF LAW

LEVAL, District Judge.

This class action is brought by rejected applicants for public housing in New York City. Plaintiffs challenge the validity of the defendant New York City Housing Authority’s procedures for rejecting applicants, claiming the procedures do not comply with the statutory notice and hearing requirements of the United States Housing Act, 42 U.S.C. § 1437d(c)(3), or with the due process clause of the Fourteenth Amendment. Plaintiffs seek damages and declaratory and injunctive relief. The plaintiff class consists of applicants for public housing whose applications were rejected under the current Authority procedures. The Authority contends that the current procedures are both statutorily and constitutionally appropriate.

The parties stipulated to a trial on a submitted record, including all papers submitted on cross-motions for summary judgment, of the issue of the validity of the current procedures afforded to public housing applicants whose applications are rejected. The issue of the eligibility of particular plaintiffs for public housing is reserved. On the issue submitted, this constitutes the court’s findings of fact and conclusions of law.

Current Procedures

a. Written Application

An individual seeking public housing must submit a written application. If it is apparent from the application that the applicant does .not qualify for public housing, a computer generated letter informs the applicant of ineligibility (Plaintiff’s Exhibit 6). The bases for an ineligibility determination on the application alone are: excess income or assets; not being a resident within New York City; or being in standard housing currently. The letter informs applicants of the basis of their ineligibility, but no factual basis for the determination is given. The letter explains that rejected applicants may visit the Applications Information Office (AIO) to review their applications and present new information.

Applications that are not initially disqualified are prioritized and processed. As indicated on each application form, if, because of low priority, an application is not processed within two years it is discarded as inactive.

b. Eligibility Interview

Applicants not summarily rejected are called for an interview with the Eligibility Division to verify factors on the application such as income, residence, family composition, or rent payment history. The interviewer includes the information produced by the interview in the applicant’s file on record forms. The interviewer will set down if she considers the applicant ineligible and on what basis. If a supervisor approves the interviewer’s finding of ineligibility, the applicant is sent a letter of ineligibility without further investigation.

c. Home Visit

If further investigation is considered necessary or the applicant is unable to appear for an interview, an investigator will be sent to the applicant’s home. The investigator will note all observations such as the extent of the applicant’s housekeeping and the care and supervision of any children present. The investigator does not discuss her observations with the applicant.

The investigator will also question the building superintendent, landlord and other individuals in the area of the applicant’s apartment about the applicant. The investigator will not ask these people about the basis, length, or quality of their relationship to the applicant, or how they obtained the information they provide. The applicant is not informed that the investigator will speak to other individuals in the building. The investigator will elicit information, such as rent payment history, occurrence of fire, and contradictory or negative information, without asking the applicant’s explanation for the incidents. All information the investigator obtains is included in the applicant’s file, including uncorroborated and conflicting information. (Plaintiffs’ Affidavit in Opposition of Raphael Samuel, ¶ 6, pp. 2-3). If an applicant is found ineligible after the home visit, an ineligibility letter is sent to the applicant.

d. Ineligibility Letters

Certain applicants are found not to meet the standards for admission to the housing program. Among the bases for this determination are: a fire having occurred in the applicant’s apartment; antisocial or criminal behavior by the applicant or a family member; applicant appears unable to care for self or family; abuses drugs or alcohol; poor housekeeper. Applicants found ineligible for such reasons are sent an ineligibility letter that tells them simply, “you do not meet the standards for admission to our housing program” without telling the grounds on which the determination was made or explanation of the factual basis. (Applicants so found not to meet the standards are sent this form of letter without explanation even if their application is rejected in part for other reasons as well.)

Applicants rejected for other reasons are sent a second form of letter that lists five possible reasons for rejection that may be checked: total family income is too great; total family assets are too great; the Authority was unable to verify income; the Authority was unable to verify family composition; or other. If “other” is checked, one of four further bases for ineligibility arev filled in: poor rent payment record; Authority unable to verify residence; applicant already living in standard housing; or applicant neither resides nor is employed in New York City. No factual basis for the determination is indicated.

As to the right to challenge the adverse determination, ineligibility letters advise the applicant as follows:

If you wish to discuss this finding, you may visit our Applications Information Office at 5 Park Place, New York, N.Y. 10007 any Wednesday, Thursday or Friday from 9:00 A.M. to 12 noon. A member of our staff will be glad to review your application with you.
After this review, if you still wish, you may file a written request for reconsideration to the above address.
Requests for reconsideration must include the reason for the request, other pertinent information, and must be filed within 90 days from the date of this letter.

e. Applicants Information Office (AIO)

At the AIO, applicants are called one at a time to a glass-partitioned window by a housing consultant, a member of the AIO staff. The interviews are conducted at a row of ten glass-partitioned booths, separated by thin wood panels. There are seats in the waiting area, but the booths used for the interviews do not have seats for the applicant, who must stand at the window. Defendant’s Exhibits 4a-4f.

The housing consultant reviews the file and reads the applicant the “basis for ineligibility” form prepared by the Eligibility Division interviewer. If a home visit was conducted, the housing consultant will orally summarize the evidence gathered in the home visit report. No informants will be identified. The applicant is not permitted to see any documents in the file excepting documents submitted by the applicant. (Under Authority policy, documents in the file may be obtained only by filing a New York Freedom of Information Law (FOIL) request to the Authority, pursuant to New York Public Officers Law, § 84 et seq. Documents provided under FOIL are redacted, deleting names and identifying criteria of informants and Authority employees.)

Although the two ineligibility letters do not state this, the housing consultant will record information that the applicant wishes to provide to counter the basis of ineligibility. The housing consultant may advise the applicant to submit documentation necessary to establish eligibility. A small percentage of ineligibility determinations are reversed after incontrovertible rebuttal evidence as to the basis for ineligibility is presented by the applicant at the AIO meeting. There is no further opportunity for applicants to provide information orally to the Authority. The applicant is not told this.

f. Reconsideration Request

An applicant may request reconsideration after AIO review. This right is indicated in the ineligibility letters. The housing consultant also advises the applicant of this opportunity after the AIO review, and provides the applicant with a copy of the Request form. When requests for reconsideration are submitted, a supervisor at AIO determines whether it should be forwarded to the Application Review Board (ARB). There are three bases for refraining from forwarding a request for reconsideration: the request for reversal of the ineligibility determination is granted based on the materials submitted; the ARB sustained this ineligibility determination before, and no new evidence has been submitted; and the request was not filed within one year of the date of the ineligibility letter.

g. Application Review Board (ARB)

The ARB is the Authority’s body that reviews rejected applicants’ challenges to their ineligibility determinations. The ARB is composed of three members from Authority Offices. The ARB staff reviews each applicant’s file and then presents to the Board a summary statement of why the applicant was determined ineligible, the statements made by the applicant at the AIO review, and submitted written documentation. The applicant does not appear or present testimony to the ARB, and no witnesses are called.

Based on a majority vote of the Board, a determination is made either to sustain the finding of ineligibility, revoke the determination and return the application for more investigation or clarification, or reverse the finding of ineligibility. The applicant is notified of the ARB’s decision by form letter. No factual basis for the determination is given. The Department of Housing Applications receives a memorandum summarizing the ARB’s decision (see Defendant’s Exhibit 11), but the applicant is not sent a copy.

Discussion

Plaintiffs contend the procedures used in rejecting an applicant for public housing do not comply with the notice and hearing requirements of the United States Housing Act, 42 U.S.C. § 1437d(c)(3) and violate the due process clause of the Fourteenth Amendment. They contend the Authority must provide all applicants determined ineligible for public housing with: 1) notice of the adverse determination, including the specific grounds for rejection and full advice of the right to contest; 2) access to applicants’ files and other evidence considered by the Authority in reaching its decision; 3) an opportunity for a live hearing conducted by an impartial hearing officer, where the applicant may be represented by counsel, present testimony and evidence, and question witnesses; and 4) a written decision based solely on evidence adduced at the hearing.

The Authority responds that the current procedures are statutorily and constitutionally adequate, and that more elaborate procedures would place an inordinate administrative burden and cost on the Authority. It argues further that revelation of its files would endanger those who provide useful adverse information to the Authority about prospective tenants.

The Housing Act provides that the “public housing agency shall promptly notify i) any applicant determined to be ineligible for admission to the project of the basis of such determination and provide the applicant upon request, within a reasonable time after the determination is made, with an opportunity for an informal hearing on such determination.” 42 U.S.C. § 1437d (c)(3). .

I recognize the need and the statutory mandate for speed and informality in the hearing process, lest the agency’s resources be drained in the litigation process. The need for confidentiality to protect sources from retaliation also is entitled to recognition in appropriate instances. Nonetheless, I find that the hearings and particularly the notice provided by the Authority are so inadequate that they do not fulfill its statutory obligation.

1. Notice

The most egregious failing of the Authority’s procedures is the inadequacy of notice of the opportunity for redress. The Ineligibility letter is deficient not only in its failure, in many instances, to advise the applicant of the basis on which she was rejected, but even more seriously for its failure to inform her of her procedural rights. In advising of the opportunity for review, this letter is worse than uninformative; it is misleading in a manner that can seriously prejudice the applicant’s cause.

The first problem results from failure to explain what factual finding led to the conclusion that the applicant “do[es] not meet the standards for admission____” She, therefore, goes to the AIO interview unprepared to rebut or disprove a finding of which she is unaware. See Billington v. Underwood, 613 F.2d 91, 94 (5th Cir.1980) (sufficient detail of the statement of reasons given the rejected applicant is required to test the veracity of the agency’s findings against him and to enable him to prepare rebuttal evidence to introduce at hearing appearance); Singleton v. Drew, 485 F.Supp. 1020, 1024 (E.D.Wis.1980) (“this court finds that the initial determination must set forth, with reasonable specificity, the reasons for denial of the application”); H. Friendly, Some Kind of Hearing, 123 U.Pa.L.Rev. 1267, 1280-81 (1975).

An even more serious failing is the inadequate and misleading notification of remedial procedures available. The ineligibility letter, quoted above, tells the applicant that “if [she] wishes to discuss” the finding, she may go to the AIO where “a member of our staff will be glad to review your application with you.” It goes on to advise of the right thereafter to “file a written request for reconsideration.”

This formulation suggests that the AIO interview serves to advise the applicant of the Authority’s reasons or basis and that any challenge by the applicant awaits the filing of her request for reconsideration. It fails to advise her that the AIO interview is her “hearing,” indeed, her only live hearing. The letter does not tell the applicant that what she says (or fails to say) at the AIO may be dispositive of her request for reconsideration. The letter does not tell the applicant whether she may be assisted by counsel at the AIO or whether she may bring witnesses. (Indeed, the Authority does not appear to have any established rule as to whether counsel or witnesses may appear at the AIO, this being left to the discretion of each interviewer.) See generally Billington, supra, at 94; Singleton, supra, at 1024-25.

The deficiencies of the notice provided by the ineligibility letters are compounded by the request-for-reconsideration procedure. The form given to the applicant to make this request suggests that the form constitutes simply a request for reconsideration. The form provides an opportunity for “explanation or rebuttal” and permits the applicant to attach “supporting documents if needed.” It fails, however, to advise the applicant that this form constitutes her sole remaining opportunity to proffer information or argument in support of her cause.

The Authority’s position as to the deficiencies of its notice provisions is in no way aided by its claim of need for simple procedures. It would cost virtually nothing to give applicants notification of the findings made against them and clear advice of the procedures open to them to seek redress. In fact, better notice might well result eventually in substantial savings of the Authority’s resources. As Judge Friendly has noted, “the more forthcoming the agency has been in disclosing its grounds, the stronger should be its position in asking curtailment of other procedures.” H. Friendly, Some Kind of Hearing, 123 U.Pa.L.Rev. 1267, 1281 (1975). To this observation might be added that the more abbreviated the procedures afforded by the agency, the greater its obligation to give clear prior notification of their nature and extent.

2. An Informal Hearing

The statute provides the right to “an informal hearing.” It is clear that the demands of plaintiffs, which call for nearly a full-fledged trial, are not required by the statute. On the other hand, the procedures used by the Authority are remarkably skimpy.

Among the most problematic features are the following:

The failure of the Authority to provide whether an applicant is permitted to be represented by counsel or to call witnesses at the AIO interview is particularly troublesome. These questions are fundamental to a hearing process. It is difficult to justify leaving them to the whim of each interviewer.

The physical disposition of the AIO interview is a further serious problem. The noise, the cramped space, the requirement that the applicant stand at the booth window opening, the close proximity of one booth to the next — all contribute to the result that a minimum of communication passes between interviewer and applicant. If an applicant 'brought either lawyer or witness, it would be most difficult for both the applicant and the lawyer (or witness) to hear the other’s discourse with the interviewer.

The need to protect adverse informants against the risk of violent retaliation is no doubt real in some instances. It is doubtful, however, whether the reality of this risk in some instances justifies the Authority’s absolute across-the-board concealment of sources. This concealment, of course, impairs the applicant’s ability to rebut what she cannot see. There would seem to be a strong argument for limiting the source concealment to instances where a judgment has been made that it is called for.

These are merely observations as to the sufficiency of the hearing and not rulings. What is clear is that the Authority’s procedures are fatally defective in the light of the notice deficiencies discussed above. The relationship between notice and procedure is of such interdependence, it is speculative and difficult to rule on what procedures would be required if bolstered by proper notification. See Friendly, supra.

Plaintiffs have succeeded in showing that the Authority has failed to discharge its statutory obligation. I do not now make unnecessary, speculative and advisory rulings as to what procedures would be sufficient if combined with adequate notice.

Plaintiffs are entitled to judgment on this issue.

SO ORDERED.

      . The following letter is sent to notify applicants of their ineligibility on initial screening of their applications, without further interview or investigation:
      We have received your application for public housing and have carefully reviewed it.
      The review shows that you are ineligible for admission based on one or more of the reasons stated below.
      -The total income of your family exceeds the limits established for admission to public housing.
      _The total assets of your family exceeds the limits established for admission to public housing.
      _We can only accommodate families in most need and your present housing situation does not qualify you for consideration for public housing at this time.
      -You or a majority of your family are not currently residing in New York City.
      If you believe that the finding of ineligibility is incorrect, you may visit our applications information office at 5 Park Place, New York, N.Y. 10007 any Tuesday, Thursday, or Friday, from 8:30 A.M. to 12:00 noon. A member of our staff will be available to review your application with you together with any new information that you may present.
      Please use the reference number printed on top in all inquiries and correspondence.

      . For example, single persons under age forty-nine and six months who are not disabled or severely handicapped but who are otherwise eligible for public housing will be advised that their priority for housing is lower than single persons above that age.

      . The investigators are either housing consultants of the Eligibility Division, members of the Home Investigation Unit, or members of the Office of Resident Review and Counselling.

      . Third parties questioned are not asked their name, where they live or for how long, how long they have known the applicant or, if they mention an unreported adult living with the applicant, a description of the adult or the hours and number of times the adult was observed.

      . The Request for Reconsideration Form reads as follows: "I have received an explanation of the status of my application and I wish to request reconsideration of the decision that I do not meet Authority standards for admission to public housing. EXPLANATION OR REBUTTAL (Attach additional sheets if necessary and any supporting documents if needed).” Defendant’s Exhibit 6.

      . Plaintiffs contend that AIO personnel have refused to forward requests on other grounds, such as determining that the applicant did not provide sufficient documentation to rebut the finding of ineligibility (Plaintiffs 3(g) Statement ¶ 72, p. 27; Farrow Deposition, pp. 56-61, Plaintiffs’ Exhibit 16), or instructing the applicant to wait several months before submitting the request to be able to show stable family composition or good rent payment history (Hamburg Deposition, pp. 38-39, 53-54, 65, Plaintiffs’ Exhibit 9).

      . The three members are: a permanent chairperson who is a member of the Office of Resident Review and Counseling; a member of the Office of Community Affairs, assigned on a rotating basis; and a member of the Management Department, assigned on a rotating basis. See Defendant’s Exhibit 7.

      . The ARB notice of decision sustaining ineligibility reads as follows:
      "The Application Review Board met on [blank] to review the decision rendered by the Housing Applications Office. After careful consideration of the entire record, the Board voted to sustain the original finding of ineligibility.
      If you have information that will shed new light on the finding of ineligibility, feel free to present it to the Applications Information Office.”
      Defendant's Exhibit 8; Plaintiffs’ Exhibit 20.

      . The only relevant regulations provide parallel obligations to those in 42 U.S.C. § 1437d(c)(3):
      The PHA shall promptly notify any applicant determined to be ineligible for admission to a project of the basis for such determination and shall provide the applicant upon request, within a reasonable time after the determination is made, with an opportunity for an informal hearing on such determination.
      24 C.F.R. § 960.207(a).


source: Caselaw Access Project

license: Public Domain

text:
    SIDERIUS, INC., Plaintiff, v. M.V. "IDA PRIMA," her engines, boilers, etc., v. NEWSER NAVIGATION, S.A., Columbia Shipmanagement, Ltd., Wil-Mar Shipping A/S and the Oceanus Mutual Underwriting Association, Defendants.
    No. 83 Civ. 9029 (PNL).
    United States District Court, S.D. New York.
    July 12, 1985.

      Bigham Englar Jones & Houston, New York City, for plaintiff; William R. Connor, III, New York City, of counsel.
    Kirlin, Campbell & Keating, New York City, for defendants; Enrico S. Sanfilippo, New York City, of counsel.
   MEMORANDUM AND ORDER

LEVAL, District Judge.

Plaintiff Siderius, Inc. seeks to recover under ocean bills of lading for damage to three consignments of steel plate transported aboard defendant vessel, M.Y. Ida I. Defendant Newser Navigation S.A. is the owner of the vessel. Defendants Wil-Mar Shipping A/S and Columbia Shipmanagement, Ltd., both Cyprus corporations, appear to be agents of Newser. Newser moves for summary judgment claiming that the action is time barred by the arbitration clause of the charter party which was incorporated by reference in the bills of lading.

The following facts appear to be undisputed. Siderius purchased steel plate on a CIF basis from an Italian steel mill, Nuova Italsider S.p.A. (“Italsider”). The steel was to be delivered to Chicago with payment due 90 days after the date of the bills of lading. Under the terms of the CIF agreement, the cost of insurance was included in the price and the buyer, Siderius, was required to pay Italsider the invoiced amount regardless of any damage during transportation. It appears that Italsider, and not Siderius, arranged for the ocean transportation of the goods.

On August 11, 1982, Wil-Mar, apparently as agent for Newser, entered into an agreement to let the Ida to charterer Sidermar di Navigacione, S.p.A. Clause 26 of the charter party provided that:

Any dispute arising under this Charter Party to be referred to Arbitration in London in the customary manner. The right of both parties to refer a dispute to Arbitration ceases 12 months after date of completion of discharge____ Where this provision is not complied with, claims shall be deemed to be waived and absolutely barred.

In August 1982, the shipment of steel at issue was loaded on the vessel and three bills of lading were issued to Italsider by the master of the vessel consigning the freight to Siderius. On the back of the bills of lading, the conditions of carriage provided that “All terms and conditions, liberties and exceptions of the Charty Party, dated as overleaf, are herewith incorporated.”

The vessel completed discharge in Chicago on September 21 or 22, 1982. At the time of discharge, Siderius noticed some salt water leakage in the vessel’s holds and concluded that the steel was probably damaged.

On September 24, 1982, Siderius telexed Columbia, the agent of Newser, stating that it intended to seize the vessel to obtain the necessary security and asking for the name of the owner’s Protection and Indemnity (P & I) club representative (Plaintiff’s Ex. C). Later that day, Lamorte Burns & Co. Inc., the owner’s P & I club representative, contacted Siderius by phone. Lamorte Burns agreed to issue a Letter of Guarantee (or Undertaking) of the Oceanus Mutual Underwriting Association in the amount of $250,000 with a New York jurisdiction clause in consideration for Siderius’ agreement not to seize the vessel. This agreement was memorialized by exchange of letters — one by plaintiff's attorney dated September 27, 1982 and one by Lamorte Burns dated September 29, 1982. (Plaintiff’s Exhibits D & E). A year later on September 22, 1983, just before the expiration of COGSA’s one year limitation period, Lamorte Burns confirmed in writing that it had “extended [plaintiff’s] time in which to institute suit and/or arbitration on behalf of the [vessel] and her owners up to and including December 19, 1983” (Plaintiff’s Ex. F).

This action was filed by Siderius on December 13, 1983. After December 19, 1983, defendant raised the contention that the action was barred by reason of failure to demand arbitration. Plaintiff then demanded arbitration.

The earlier promised letter of guarantee was eventually issued by Lamorte Burns on December 29, 1983.

Parties’ Contentions:

The owner Newser contends that the action is barred under the charter party’s arbitration clause since no demand for arbitration was made within 12 months after discharge or within the extension granted by the owner’s representative. It argues that since the charter party was incorporated into the bills of lading, Siderius, as assignee of the bills of lading, was bound by the arbitration clause in the charter party. Newser points to two provisions in the bills of lading which refer to the charter party. On the back of the bills of lading is the small print condition of carriage mentioned above stating: “All terms and conditions, liberties and exceptions of the Charter Party, dated as overleaf are herewith incorporated.” On the front of the bills a clause states “Freight payable as per charter-party dated 11/8/1982.” Newser points to various decisions in this circuit, e.g., Son Shipping Co. v. DeFosse & Tanghe, 199 F.2d 687, 688 (2d Cir.1952); Midland Tar Distillers, Inc. v. M/T Lotos, 362 F.Supp. 1311, 1312-13 (S.D.N.Y.1973), in support of its argument that an arbitration clause in the charter party is incorporated in the bill of lading by the use of language similar to this.

In response, Siderius argues that the charter party was insufficiently incorporated into the bills of lading. It relies on English law, quoting an opinion of Lord Denning, The Annefeld (1971), holding that an arbitration clause is not incorporated into the bill of lading, absent express reference to the clause as incorporated.

Alternatively, Siderius contends that defendant waived its rights under the London arbitration clause by authorizing its agent to agree to a Letter of Guarantee with a New York jurisdiction clause. Newser argues in answer that the Letter of Guarantee stated it was binding only on the P & I Club and “is written without prejudice as to any defenses which the vessel or owners may have under the Bills of Lading and/or Charter Parties____”

Discussion

Long standing decisions in this circuit favor defendant’s interpretation of the bill of lading. A charter party is deemed incorporated into a bill of lading and binding as against an assignee, even though the assignee is a stranger to the charter party if the bill of lading states that it is governed by the charter party and identifies it with sufficient specificity. See State Trading Corp. of India v. Grunstad Shipping, 582 F.Supp. 1523, 1524 (S.D.N.Y.), aff'd without op., 751 F.2d 371 (2d Cir.1984); Amoco Overseas Co. v. S.S. Avenger, 387 F.Supp. 589, 593 (S.D.N.Y.1975); Lowry & Co. v. S.S. Le Moyne D’Iberville, 253 F.Supp. 396, 397-98 (S.D.N.Y.1966), appeal dismissed, 372 F.2d 123 (2d Cir.1967); compare United States Barite Co. v. M.V. Haris, 534 F.Supp. 328, 329, 330 (S.D.N.Y.1982) (charter party not incorporated where reference to charter party in bill of lading did not specifically identify a particular charter party); Cia. Platamon de Navegacion, S.A. v. Empresa Colombiana de Petroleos, 478 F.Supp. 66, 68 (S.D.N.Y.1979) (no incorporation where charter party date is left out of bill of lading). Where a bill of lading so states that it incorporates a charter party, an arbitration clause in the charter party is held to bind the assignee of the bill of lading if the arbitration clause is not limited by its terms to disputes between the shipowners and the charterers. See Amoco Overseas, 387 F.Supp. at 593; Midland Tar Distillers, Inc. v. M/T Lotos, 362 F.Supp. 1311, 1314 (S.D.N.Y.1973); Lowry & Co., 253 F.Supp. at 398; compare Production Steel Co. of Illinois v. S.S. Francois L.D., 294 F.Supp. 200, 201-02 (S.D.N.Y.1968) (arbitration clause not binding on cargo owner where clause specifically limited to disputes between shipowner and charterer). Charter party arbitration clauses providing for arbitration of “any dispute arising under this Charter Party” have been held sufficiently broad to encompass a dispute between the carrier and the assignee of the bills of lading. E.g., Amstar Corp. (American Sugar Div.) v. S.S. Union Australia, 445 F.Supp. 940, 941 (S.D.N.Y.1978); Lowry & Co., 253 F.Supp. at 398.

Notwithstanding these decisions, I believe there are at least three forceful arguments to be made against the carrier’s position.

First, in my view, despite contrary authority, e.g., Amstar Corp. (American Sugar Div.), supra, 445 F.Supp. at 941-42; Kurt Orban Co. v. S.S. Clymenia, 318 F.Supp. 1387, 1390 (S.D.N.Y.1970), to oblige a U.S. consignee of freight under a bill of lading to proceed by foreign arbitration seems at odds with the well-recognized requirements of the Carriage of Goods by Sea Act, 46 U.S.C. §§ 1300 et seq. That statute was designed to void overreaching clauses inserted by carriers in bills of lading, unreasonably limiting the carriers’ liability or obstructing the freight claimants’ ability to secure redress. See Encyclopaedia Britannica, Inc. v. S.S. Hong Kong Producer, 422 F.2d 7, 11-12 (2d Cir.1969), cert. denied, 397 U.S. 964, 90 S.Ct. 998, 25 L.Ed.2d 255 (1970). The Act establishes a variety of norms and in Section 1303(8), Title 46 U.S.C., expressly prohibits “any clause, covenant or agreement in a contract of carriage lessening [the carrier’s] liability otherwise than as provided in [this Act].” This provision has been held to void a clause of a bill of lading requiring the consignee to litigate claims against the carrier in a foreign forum under foreign law. The Court of Appeals stated in Indussa Corp. v. S.S. Ranborg, 377 F.2d 200, 203-04 (2d Cir.1967) (en banc) that “from a practical standpoint, to require an American plaintiff to assert his claim only in a distant court lessens the liability of the carrier quite substantially, particularly where the claim is small. Such a clause puts ‘a high hurdle’ in the way of enforcing liability ... and thus is an effective means for carriers to secure settlements lower than if cargo could sue in a convenient forum” (Quoting G. Gilmore & C. Black, The Law of Admiralty, § 3-25 at 145 n. 23 (2d ed. 1975)).

The considerations are substantially similar where the bill of lading requires the consignee to arbitrate in a foreign country. The Indussa opinion suggested its holding might be different as to foreign arbitration, by reason of the strong policy of Federal Arbitration Act to enforce arbitration agreements. Id. at 204 n. 4. Gilmore and Black, however, have suggested that arbitration clauses incorporated into bills of lading which unduly restrict a cargo owner’s right to relief seem to be “clearly out of line with Indussa.” Gilmore & Black, supra, at 146 n. 23 (criticizing the decision in Kurt Orban, supra, which upheld a three-month limit on arbitration as nonviolative of COGSA). Moreover, in AAACON Auto Transport v. State Farm Mutual Auto Insurance, 537 F.2d 648, 655 (2d Cir.1976), cert. denied, 429 U.S. 1042, 97 S.Ct. 742, 50 L.Ed.2d 754 (1977), the Court of Appeals invalidated an arbitration clause in an interstate carrier’s standard-form bill of lading which required a private shipper to arbitrate all disputes with the carrier in New York. It ruled that such a clause violated the provision of the Interstate Commerce Act, 49 U.S.C. § 20(11), that a “limitation of liability” in a bill of lading “is unlawful and void.” The AAACON opinion purports to distinguish, but substantially undercuts, the suggestion of Indussa that such clauses in an ocean bill might be valid. Although the AAACON court suggested that equality of bargaining power might have a bearing, it must be recognized that the consignee under a bill of lading did not bargain with the carrier at all. If the policies of the Arbitration Act and COGSA conflict as to the enforcement of the arbitration clause, it seems to be a weak case for enforcement of the Arbitration Act against a party who did not agree to arbitrate, while it is a strong case for enforcing COGSA in favor of the consignee — an intended beneficiary of its provisions. I believe in those circumstances that the command of COGSA should be held to prevail over that of the Arbitration Act.

Defendants may argue that the arbitration clause does not deprive the cargo consignee of the right to bring his action in U.S. courts, and that these will be mindful of COGSA’s proscriptions in passing on the enforceability of the arbitrators’ award. But these arguments are unsubstantial, if not illusory. Although it is true the U.S. claimant may begin by lodging his action in a U.S. court, he cannot secure relief there. He must in addition (or instead) secure London counsel to prosecute an arbitration there. The expense alone of obtaining such representation will substantially assure that many smaller claims will be foregone. Furthermore, the cargo claimant will have little assurance that the arbitrators will enforce COGSA. Nor can he be confident that the U.S. court in which his action is brought will ensure that the arbitrators followed COGSA. Arbitrators’ decisions are rarely explained. And courts do not vacate the arbitrators’ awards, except on extreme grounds, such as misconduct or manifest disregard for the law, see Dundas Shipping & Trading Co. v. Stravelakis Bros., Ltd., 508 F.Supp. 1000, 1003-04 (S.D.N.Y.1981), a showing not easily or often made, see Drayer v. Krasner, 572 F.2d 348, 352 (2d Cir.) (Friendly, J.), cert. denied, 436 U.S. 948, 98 S.Ct. 2855, 56 L.Ed.2d 791 (1978); A/S Siljestad v. Hide-ca Trading, Inc., 541 F.Supp. 58, 60 (S.D.N.Y.1981), aff'd., 678 F.2d 391 (2d Cir.1982) (per curiam). As a practical matter the cargo claimant will have little assurance that he will receive the benefits of U.S. law if required to proceed by London arbitration.

Although it is not an explict provision of COGSA that the claimant may pursue his claim in the U.S. courts, this is implicit in COGSA’s relationship to sections 1331 and 1333 of the Federal Code, Title 28 U.S.C., giving the district courts jurisdiction of actions arising in admiralty and under the laws of the United States. That assurance implicitly served as the basis of the ruling in Indussa, supra, striking down a requirement of foreign litigation. I believe the result should be the same for a requirement of foreign arbitration imposed on the consignee of the bill of lading. But see Kurt Orban Co. v. S.S. Clymenia, supra.

Second, I have serious doubt, despite contrary decisional authority, see, e.g., Amoco Overseas, supra; Lowry & Co., supra, whether this bill of lading gave the consignee sufficient, meaningful notice that the bill of lading incorporated an arbitration requirement by reference to the charter party. No reference is made to arbitration in the bill of lading. Nothing alerts the consignee’s attention to the possibility that the reference to the charter party may be a booby trap. The consignee is, of course, not provided with a copy of the charter party without demand. Once again, recognizing the purpose of COGSA to provide for the cargo claimant a simple procedure to enforce his rights in the U.S. courts on reasonable terms, I question whether this oblique reference in the bill of lading should be deemed adequate incorporation of an unmentioned arbitration clause in a charter party to which the consignee is a stranger.

Finally, I question whether the arbitration clause, by its terms, applies to disputes arising under the bill of lading. The charter party states that disputes “arising under this Charter Party” shall be arbitrated in London. As seen from the viewpoint of the consignee of freight, the dispute does not arise under the charter. He has no interest in the charter, which governs the business relationship between the vessel owner (or disponent owner) and the charterer. He would view the bill of lading as the document upon which his rights are founded. Thus, even in the unlikely event that the consignee were aware of the arbitration clause in the charter party, in my view he would not understand it to cover his claim for shortage or damage to the cargo covered by his bill of lading. But see Lowry & Co. v. S.S. Le Moyne, supra.

For the reasons argued above, I would undertake, in an appropriate case, a reexamination of the lines of authority on which defendants here rely.

I need not resolve those issues because it appears that the owner gave up whatever right it may have had to compel arbitration by the subsequent agreements it made with plaintiff. First, in September of 1982, in consideration of plaintiffs fore-bearing the seizure of the vessel, the owner agreed through Lamorte Burns to give a Letter of Guarantee of the underwriters with a New York jurisdiction clause. Then, a year later, in order to induce the plaintiff to forebear bringing action within the one year time limit, Lamorte Burns “on behalf of the M.V. Ida Prima and her owners” signed its agreement to plaintiffs letter extending the time “for suit and/or arbitration” up to December 19, 1983. Finally, Lamorte Burns’ $250,000 Letter of Guarantee (delivered after the lawsuit had commenced) was issued with explicit reference to this litigation in the Southern District of New York and included a promise that the “claim of owner of the “Ida I” would be filed in this suit.” The inference is that, by these contracts, the owner, through its representative, extended to plaintiff agreement that the dispute might be conducted in a New York court, as well as by London arbitration.

I would add that, even if there were doubt as to whether the new agreements conferred this right by their express terms (which are circumspect), plaintiff would have a strong argument of equitable estoppel requiring this construction, since the owner’s (or representative’s) conduct induced plaintiff to prejudice its position by representations implying the sufficiency of New York jurisdiction and never mentioned the contention that arbitration was required until after the expiration of plaintiff’s time to demand arbitration. See Portland Fish Co. v. States Steamship Co., 510 F.2d 628, 633 (9th Cir.1974); Demsey & Associates v. S.S. Sea Star, 461 F.2d 1009, 1015 (2d Cir.1972); Van Ekris & Stoett, Inc. v. S.S. Rio Paraguay, 573 F.Supp. 1475, 1479 (S.D.N.Y.1983), aff'd without op., 738 F.2d 419 (2d Cir.1984).

Defendant makes a frivolous argument that Lamorte Burns’ actions did not bind the owner. The argument depends on the inclusion of a clause in the December 29, 1983 Letter of Guarantee stating:

This letter is written entirely without prejudice as to any rights or defenses which the said vessel or owners may have under the covering bills of lading and/or charter parties and/or statutes in effect, none of which is to be regarded as waived.

There are several answers: first, this letter was not written until after the fact. A year earlier plaintiff had already foregone its right to seize the vessel; three months earlier, plaintiff had foregone suit within the year limitation; and 10 days earlier, plaintiff had permitted the extension period to expire without commencing arbitration. Never before had it been suggested to plaintiff that Lamorte Burns’ actions were not binding on the owner. To the contrary, the owner’s agent Columbia initially caused Lamorte Burns to contact plaintiff with a view to negotiating the forebearance to seize the vessel, and Lamorte Burns acknowledged in the time extension letter of September 21, 1983, that the extension was granted “on behalf of the [vessel] and her owners.” It would be outlandish for the owner to claim that the suit was untimely since the owner had never agreed to an extension, and it does not so claim. Nor can it claim that the other provisions to which Lamorte Burns agreed on its behalf were not binding on it.

The implication of the clause quoted is that the owners should not be deemed to have waived “any rights or defenses” other than those which they agreed, through Lamorte Burns, to give up.

Plaintiff has not moved for summary judgment on the issue of its freedom from the arbitration clause of the charter party. Nonetheless, the making of a motion for summary judgment exposes the moving party to the risk that summary judgment will be granted against him, if the submissions make clear that there is “no genuine issue as to any material fact and that the [adverse] party is entitled to judgment as a matter of law.” Rule 56(c). See Project Release v. Prevost, 722 F.2d 960, 969 (2d Cir.1983) (trial court “may grant summary judgment to a non-moving party, if no genuine issues of material fact have been shown”); see also 6 J. Moore, Moore’s Federal Practice, 11 56.12 at 331-32 (2d ed. 1985) and cases cited therein. The present record would seem to suggest judgment in favor of the plaintiff on the question of the timeliness and appropriateness of its institution of suit in this court without need to arbitrate in London. Given the customary manner of such dealings and the evidence already received, it is unlikely that further evidence will illuminate the construction of Lamorte Burns’ agreements (although I note reference in the extension letter of September 21, 1983, to a telephone conversation of September 19, 1983).

It is also likely that judgment on the meaning and effect of such a contract can as well be entered summarily as after trial. The parties are notified that the court will consider whether judgment should be entered in plaintiff’s favor on this limited question. Any further evidence to be considered on the issue, including affidavits, depositions, exhibits or other documents shall be submitted within 60 days.

SO ORDERED.

      . According to an affidavit by Bruno Bertoni, Siderius’ Director of Operations, Sidermar often arranges for the transportation of Italsider’s shipments.

      . Despite defendant's argument to the contrary, COGSA governs these bills of lading even though they may incorporate terms of the charter party. Although COGSA does not cover charter parties, it does govern bills of lading which incorporate provisions from a charter party and such provisions must accord with COGSA or they are void. See 46 U.S.C. § 1305 ("The provisions of this Act shall not be applicable to charter parties; but if bills of lading are issued in the case of a ship under a charter party, they shall comply with the terms of this chapter.); G. Gilmore & C. Black, The Law of Admiralty, § 4-10 at 218-19 (2d ed. 1975) ("however clearly they may be incorporated, ... any and all charter party terms, in order to have effect as bill of lading terms, must conform to Cogsa” except where the bill of lading remains in the hands of the charterer in which case Cogsa is inapplicable).

      . I also have serious doubts as to whether the incorporation clause gave plaintiff adequate notice of what charter party was incorporated. The incorporation clause simply refers the reader to a clause on the front of the bill of lading which reads "freight payable as per charter-party dated 11/8/1982.” There is no indication who are the signatories of the charter party. This is unlike cases where the holder of the bill of lading was in a position to know the terms of the incorporated charter party, e.g., Amoco Overseas Co., supra, 387 F.Supp. at 593-94; Lowry & Co. v. S.S. Nadir, 223 F.Supp. 871, 873-74 (S.D.N.Y.1963); Chilean Nitrate Sales Corp. v. The Nortuna, 128 F.Supp. 938, 939 (S.D.N.Y.1955).

      . It should be noted that the only Court of ■Appeals decision on which defendant relies, Son Shipping Co. v. De Fosse & Tanghe, 199 F.2d 687 (2d Cir.1952), is weak authority for these facts because that case dealt with whether a charter party arbitration clause incorporated into a bill of lading is binding against the shipowner, who was a party to the charter party. See also Import Export Steel Corp. v. Mississippi Valley Barge Line Co., 351 F.2d 503, 506 (2d Cir.1965) where the Court of Appeals explained "the rule in this circuit is that a holder of a bill of lading which specifically refers to a charter party and in unmistakeable language incorporates the charter party’s arbitration section can compel a party to the charter party to arbitrate a dispute which comes within the scope of the arbitration provision” (emphasis added) (citing Son Shipping Co.).


author: ROSS T. ROBERTS, District Judge.

text:
    Robert HOUK and Jane Houk, Plaintiffs, v. KIMBERLY-CLARK CORPORATION, Defendant.
    No. 84-1161-CV-W-0.
    United States District Court, W.D. Missouri, W.D.
    July 12, 1985.

      Paul L. Redfearn, Robert J. Perkins, Kansas City, Mo., for plaintiffs.
    Joseph A. Sherman, Steven J. Quinn, Richard D. Rhyne, Kansas City, Mo., for defendant.
   ORDER

ROSS T. ROBERTS, District Judge.

This is an action to recover damages for personal injuries allegedly sustained by plaintiff Robert Houk as a result of the negligence of defendant in connection with safety procedures at a construction site located in La Grange, Georgia. Jane Houk, the injured plaintiffs wife, seeks damages for loss of consortium. Both plaintiffs are residents of Missouri, and have been so for all relevant times described in this lawsuit. The matter is presently before the court for a ruling on defendant’s motion that the cause be transferred to the United States District Court for the Northern District of Georgia pursuant to 28 U.S.C. § 1404(a). After considering the excellent briefs submitted by the parties, and for the reasons expressed hereinbelow, the court has concluded that defendant’s motion will be denied.

BACKGROUND

The pleadings appearing in the record indicate that defendant, a Delaware corporation registered to do business in Georgia and Missouri, contracted with the Daniel Construction Company, a South Carolina corporation, as the general contractor, to build a non-woven fabric manufacturing plant for it on land leased by defendant from The Development Authority of La Grange. Daniel Construction Company in turn subcontracted with Southern Foundations, Inc., a Georgia corporation, for the installation of piles for the plant’s foundation.

Sometime prior to July 6, 1983, Charles Houk, the president and general manager of Southern Foundations, contacted his brother, Robert Houk, in Oak Grove, Missouri, and asked if he would temporarily work at the La Grange construction site. On July 6, 1983, Robert Houk, while working as an employee of Southern Foundations, was injured when he was struck by one of three piles that fell from a crane at the construction site. Houk received emergency medical care at a hospital in Columbus, Georgia, and, some three weeks following the accident, was flown by air ambulance to Missouri where he was admitted to the University of Kansas Medical Center. Houk was later transferred to The Medical Center of Independence, and is presently a long-term patient at the Swope Ridge Rehabilitation Center where he receives around-the-clock medical care for the injuries he sustained.

This action, originally filed by plaintiffs in the Circuit Court of Jackson County, Missouri, was removed to this forum by defendant on November 20, 1984. Defendant has now moved that the case be transferred to the United States District Court for the Northern District of Georgia under § 1404(a), which provides that “[f]or the convenience of parties and witnesses, in the interest of justice, a district court may transfer any civil action to any other district or division where it might have been brought.”

GOVERNING STANDARDS

In determining whether to exercise its discretion to transfer an action on the basis of § 1404(a), the court may consider a myriad of factors, including the convenience of the parties, the convenience of the witnesses, the availability of judicial process to compel the attendance of unwilling witnesses, the governing law, the relative ease of access to sources of proof, the possibility of delay and prejudice if a transfer is granted, and practical considerations indicating where the case can be tried more expeditiously and inexpensively. See, e.g., Stabler v. New York Times Co., 569 F.Supp. 1131, 1137 (S.D.Tex.1983); Durham Productions v. Sterling Film Portfolio, 537 F.Supp. 1241, 1243 (S.D.N.Y.1982); Dayton Power & Light Co. v. East Kentucky Power Corp., 497 F.Supp. 553, 555 (E.D.Kent.1980).

In any determination of a motion to transfer under § 1404(a), the plaintiffs choice of a proper forum is entitled to great weight, and will not be lightly disturbed, Shutte v. Armco Steel Corp., 431 F.2d 22, 25 (3rd Cir.1970), cert. denied, 401 U.S. 910, 91 S.Ct. 871, 27 L.Ed.2d 808 (1971) (plaintiffs choice of forum is “paramount consideration”); Mowrey v. Johnson & Johnson, 524 F.Supp. 771, 775 (W.D.Pa.1981), especially where the plaintiff is a resident of the judicial district in which the suit is brought, as is the case here. Piyer Aircraft Co. v. Reyno, 454 U.S. 235, 255, 102 S.Ct. 252, 265, 70 L.Ed.2d 419 (1981); Culbertson v. Ford Motor Co., Inc., 531 F.Supp. 406, 407 (E.D.Pa.1982); Ronco, Inc. v. Plastics, Inc., 539 F.Supp. 391, 401 n. 12 (N.D.Ill.1982).

It is incumbent upon the party seeking transfer to make a clear showing that the balance of interests weighs in favor of the proposed transfer, and unless that balance is strongly in favor of the moving party, the plaintiffs choice of forum should not be disturbed. Carty v. Health-Chem Corp., 567 F.Supp. 1, 3 (E.D.Pa.1982); Hodson v. A.H. Robins Co., Inc., 528 F.Supp. 809, 817 (E.D.Va.1981); Oce-Industries, Inc. v. Coleman, 487 F.Supp. 548, 553 (N.D.Ill.1980). Where the balance of relevant factors is equal or only slightly in favor of the movant, the motion to transfer should be denied. Lee v. Ohio Casualty Ins. Co., 445 F.Supp. 189, 192 (D.Del.1978); B.J. McAdams, Inc. v. Boggs, 426 F.Supp. 1091, 1105 (E.D.Pa.1977). Concomitantly, a transfer which would merely shift the inconvenience from one party to another should not be granted. Darby Drug Co., Inc. v. Zlotnick, 573 F.Supp. 661, 664 (E.D.N.Y.1983); Lieb v. American Pacific Inter., Inc., 489 F.Supp. 690, 697 (E.D.Pa.1980); 15 Wright, Miller & Cooper, Federal Practice and Procedure: § 3848 at 246.

CONVENIENCE OF WITNESSES

The convenience of witnesses is said to be a primary, if not the most important, factor in passing on a motion to transfer under § 1404(a). Cambridge Filter Corp. v. International Filter Co., 548 F.Supp. 1308, 1311 (D.Nev.1982); American Standard, Inc. v. Bendix Corp., 487 F.Supp. 254, 262 (W.D.Mo.1980). This factor involves not merely a consideration of the number of witnesses located in or near the respective forums, but the nature and quality of their testimony in relationship to the issues of the case. Midwest Precision Services v. PTM Industries, 574 F.Supp. 657, 659 (N.D.Ill.1983); Vaughn v. American Basketball Association, 419 F.Supp. 1274, 1276-77 (S.D.N.Y.1976). As a result, it is the burden of the party seeking transfer to specify clearly the key witnesses to be called and indicate what their testimony will entail. Factors Etc., Inc. v. Pro Arts, Inc., 579 F.2d 215, 218 (2nd Cir.1978), cert. denied, 440 U.S. 908, 99 S.Ct. 1215, 59 L.Ed.2d 455 (1979); American Standard, Inc. v. Bendix Corp., supra at 263; American Can Co. v. Crown Cork & Seal Co., Inc., 433 F.Supp. 333, 338 (E.D.Wis.1977).

In an attempt to satisfy this burden, defendant has identified a number of witnesses deemed to be material by indicating their name, job title or description, relationship to the events or issues in this lawsuit, and place of residence. Moreover, defendant has indicated, with varying degrees of specificity, what the testimony of these witnesses would be at trial.

Three of the witnesses so identified were employees of Daniel Construction Co. on the day of the accident and were eyewitnesses to the accident. All three reside in La Grange, Georgia. Another employee of Daniel Construction Co. identified by defendant is Thomas C. Casper, safety manager at the construction site, who could describe the usual procedure followed by Southern Foundation employees in transporting piles. Mr. Casper, also a resident of La Grange, Georgia, further indicates in his affidavit that he would testify that defendant had no supervision or control over the construction site or safety procedures in force there.

Defendant has also identified six of its employees said to possess information relating to the duties and responsibilities of the contractor, subcontractor, and engineering companies involved in the construction project. All six of these individuals reside in Georgia. In addition, Charles Houk, plaintiffs brother and supervisor for Southern Foundations at the La Grange project site, resides in La Grange. Of the other individuals listed by plaintiffs in their interrogatory answers as having witnesses the accident, four are residents of California, one of Alabama, and one of North Carolina. Defendant also suggests that since the contractor, subcontractors, and engineering companies involved in the project are corporations with their principal places of business in Georgia or adjoining states, any employees of those companies with material knowledge regarding the issues of site control and safety responsibility are likely to be located in Georgia or its vicinity. Finally, defendant notes that the treating physicians who were involved in the diagnosis and care of plaintiff for the approximately three weeks immediately following the accident are located in Columbus, Georgia.

In summary, defendant contends that the predominant number of key witnesses with material testimony to offer at trial are located in Georgia or states adjacent to Georgia, so that Georgia would be a more convenient forum for them than Missouri. Those witnesses listed by plaintiffs as residing in California, defendant suggests, would be equally inconvenienced by either a Georgia or Missouri forum. Defendant acknowledges that plaintiffs themselves would be inconvenienced by a Georgia fo.rum, but suggests that their testimony as to liability would not be material, so that this factor does not outweigh the inconvenience of the present forum to the great number of key witnesses located in Georgia.

Plaintiffs disagree with the assertion that eyewitnesses to the accident and those individuals with knowledge of safety responsibilities under the construction contracts are material witnesses in this action. There is no material issue, plaintiffs argue, as to how the accident occurred and, in addition, defendant was responsible as a matter of law to see that its premises were safe pursuant to its non-delegable duty as a landlord. Therefore, plaintiffs urge, the material issue is not who was responsible for safety, but whether or not the safety standards were in fact violated. Under the analysis suggested by plaintiffs, the employees of Southern Foundations are in the best position to testify to the hoisting methods employed on the construction site. The seven employees of Southern Foundations identified by plaintiffs as having such knowledge and who were present on the site the day of the accident include four residents of California, one of Alabama, one of Mississippi, and one of Georgia. According to an affidavit submitted by Charles Houk, the single Georgia resident, he has agreed to voluntarily appear in Missouri for trial. Plaintiffs contend that of these remaining witnesses, a Georgia forum would be just as inconvenient as a Missouri forum, if not more inconvenient for those witnesses who reside in California.

As to medical witnesses, plaintiffs point out that the physicians and therapists who have treated Robert Houk on a continuous basis since his transfer back to Kansas City are in a better position than the medical personnel in Georgia to testify to the full nature and extent of his injuries.

The court is in a less advantageous position than are the parties to assess the materiality of testimony to be elicited from the various witnesses, but it does appear that the convenience of the witnesses, as well as the relative cost of securing their presence at trial, tends somewhat to favor transfer to Georgia, although not to the extent urged by defendant. As is clear from earlier discussion, however, the convenience of the witnesses is only one factor, albeit a weighty one, in determining whether an action should be transferred. Since the convenience of the witnesses, considered in isolation, does not clearly dictate transfer of the case to Georgia, the overall weight to be accorded this factor can be meaningfully determined only after a review of the other relevant factors.

CONVENIENCE OF PARTIES

The substantial weight to be given plaintiffs’ choice of a proper forum is a factor which has been touched on previously in this order and need not be repeated at length. Plaintiffs contend in relation to this point that transfer of this action to Georgia would result in greatly increased financial costs to them, costs which they would be unable to bear. The anticipated costs for what plaintiffs estimate could be a two to three week trial include the transportation of Robert Houk to Georgia via air ambulance, medical care and housing for Robert Houk while in Georgia, transportation and housing for Jane Houk and the couple’s children, and transportation and housing for counsel.

Although not entitled to great weight, the parties’ relative financial ability to undertake a trial in any particular forum is a relevant consideration. Cambridge Filter Corp. v. International Filter Co., 548 F.Supp.1 308, 1311 (D.Nev.1982); Vaughn v. American Basketball Association, supra at 1277; Grey v. Continental Marketing Associates, Inc., 315 F.Supp. 826, 831 (N.D.Ga.1970). Contrary to defendant’s assertion that the transportation and living expenses for plaintiffs’ attorneys will be expenses incurred by plaintiffs only if counsel chooses to make them so, the cost of counsel’s transportation and other expenses must ultimately rest with plaintiffs. Hence, this factor is of direct relevance to the convenience of the parties. Mobile Oil Corp. v. W.R. Grace & Co., 334 F.Supp. 117, 125 n. 5 (S.D.Tex.1971); Los Angeles Memorial Coliseum Com’n v. National Football League, 89 F.R.D. 497, 501 (C.D.Cal.1981). As evidenced somewhat by defendant’s apparent willingness to underwrite some of plaintiffs’ additional expenses in connection with a transfer to Georgia, the parties’ relative financial resources is a factor militating against transfer.

In addition to the customary degree of deference to be accorded plaintiffs’ choice of forum, the court is compelled to consider plaintiff Robert Houk’s medical condition. Vassallo v. Niedermeyer, 495 F.Supp. 757, 760 (S.D.N.Y.1980). This factor is of considerably greater concern to the court than the limited financial resources of plaintiffs. Plaintiffs have suggested that in light of Houk’s need for continuous medical care, transfer of this case to Georgia would not only be inconvenient for him, but medically dangerous as well. Plaintiffs have submitted a report and affidavit of Dr. Michael E. Howard, plaintiff’s consulting neuropsychologist, wherein Dr. Howard indicates that although plaintiff is showing substantial gains in his cognitive abilities since admission to the Swope Ridge Rehabilitation Center, transfer from that institution at the present time would hamper his recovery. In Dr. Howard’s opinion, plaintiff can be discharged from the care facility only upon a remarkable improvement in his level of functioning, an event deemed unlikely in the foreseeable future.

Defendant suggests in the first instance that it is somewhat speculative to conclude that travel to Georgia would be medically dangerous for plaintiff. Assuming, defendant goes on to argue, that travel to Georgia would be detrimental to plaintiff’s health, so too would travel from the care facility in Independence, Missouri, to the federal courthouse in Kansas City, Missouri, albeit to a lesser degree. Defendant also suggests that, given the limitations on plaintiff’s capacities to speak and to understand speech, his appearance at trial would not serve any clear purpose, and that documentary evidence such as photographs or video-tape would suffice to show the nature and extent of his injuries.

The exact nature and extent of plaintiff’s physical disabilities, and the resulting effect on his ability to travel, remain subject to ultimate proof at trial. Those matters need not be established to a high degree of certainty for the purpose of ruling defendant’s motion to transfer. The salient consideration for the latter purpose is this court’s unwillingness to direct an action which might pose a risk, of whatever magnitude, to plaintiff’s continued rehabilitation or effectively force him to abandon his right to be present at the trial of this lawsuit. It may be, as defendant has suggested, that plaintiff’s ability to attend trial is problematic regardless of the location. Nevertheless, it seems reasonable to assume, as the court does, that the inconvenience and risks associated with plaintiff being transported the relatively short distance from Independence to the federal courthouse in Kansas City, Missouri, are substantially less than those associated with the greater disruption which would be involved in travel to Georgia.

On the basis of the foregoing concerns, principally those relating to Robert Houk’s medical condition, the court concludes that absent a demonstration by defendant that the other factors involved in consideration of a § 1404(a) motion are sufficient to shift the balance strongly in favor of transfer, the fact that trial in Georgia would slightly favor the convenience of the witnesses does not justify disturbing plaintiffs’ choice of forum.

AVAILABILITY OF JUDICIAL PROCESS

An additional factor said by defendant to justify transfer of this matter to Georgia is the lack of process to compel the appearance in this forum of the non-party witnesses who reside beyond the 100-mile limit of this court’s subpoena power. While the unavailability of judicial process to compel the attendance of witnesses who will not voluntarily appear is certainly a factor weighing in favor of transfer, see Vassallo v. Niedermeyer, supra at 760; Commercial Solvents Corp. v. Liberty Mutual Ins. Co., 371 F.Supp. 247, 250 (S.D.N.Y.1974), it is not controlling where, as in the present case, the defendant’s argument merely assumes that the witnesses in question would not appear voluntarily at a trial in Missouri. Micheel v. Haralson, 586 F.Supp. 169, 173 (E.D.Pa.1983); First National City Bank v. Nanz, Inc., 437 F.Supp. 184, 189 (S.D.N.Y.1975). It might further be noted that defendant has not shown that use of video-taped depositions would be inadequate. Micheel v. Haralson, supra at 173. Due to the apparent fact that most of the employees of Southern Foundations identified as material witnesses by plaintiffs reside in states other than Georgia, the difficulties attendant to unavailability of process would exist even if this case were to be transferred to Georgia.

AVOIDANCE OF MULTIPLE LITIGATION

Another factor cited by defendant as favoring transfer is its announced intention to seek indemnity from the contractors and subcontractors, corporate entities which cannot be joined as parties in this forum, but can in Georgia. As a general matter, the avoidance of “duplicative and piecemeal litigation” is a factor that weighs in favor of transferring an action to a district in which all parties can be joined in a single action. Kreisner v. Hilton Hotel Corp., 468 F.Supp. 176, 179 (E.D.N.Y.1979). The ability of a party to implead as a third-party defendant an entity which cannot be subjected to the jurisdiction of the transferor court may thus be an appropriate reason for granting a transfer; however, this factor is not determinative and will not outweigh other factors militating against transfer. Murphy v. Allen County Claims & Adjustments, Inc., 550 F.Supp. 128, 133 (S.D.Ohio 1982); Hervey v. United States, 450 F.Supp. 1148, 1148 (E.D.Wis.1978); Lee v. Ohio Casualty Ins. Co., supra at 192; Prentice-Hall Corp. Systems, Inc. v. Ins. Co. of North America, 81 F.R.D. 477, 481 (S.D.N.Y.1979). This factor is further diminished in importance where it is not clear that the same evidence that would be required for the plaintiff to establish his case against the defendant would also be required for the defendant to establish his case against a third-party defendant. Prentice-Hall Corp. Systems, Inc. v. Ins. Co. of North America, supra at 481. In finding that this factor is not entitled to great weight in passing on defendant’s motion, the court quotes with approval the following passage from Robbins Music Corp. v. Alamo Music, Inc., 119 F.Supp. 29, 30 (S.D.N.Y.1954):

“Undoubtedly, it is desirable that the rights of all interested parties, whenever possible, should be disposed of in a single litigation. But plaintiffs should not be inconvenienced and burdened with additional expense to litigate in a distant forum on the possibility that an alleged tort-feasor may be indemnified in plaintiffs’ action by another tort-feasor. The defendants’ right to indemnity is not lost if Schumann is not a defendant in this action. Accordingly, Schumann’s determination not to appear in this action ... should not serve as the basis for compelling a transfer and defeating plaintiffs right to choice of forum____”

APPLICATION OF FOREIGN LAW

Assuming for present purposes only that defendant is correct in arguing that the substantive law of Georgia, rather than that of Missouri, governs this action, this consideration is entitled to little significance in the court’s decision. While some cases speak of the appropriateness of leaving the construction of a state’s law to those courts most familiar with it, Kreisner v. Hilton Hotel Corp, supra at 179; Vaughn v. American Basketball Association, supra at 1278, the general view, one to which this court ascribes, is that this factor is to be given little weight where, as appears to be the case here, the foreign law to be applied is neither complex or unsettled. AMF, Inc. v. Computer Automation, Inc., 532 F.Supp. 1335, 1347-48 (S.D.Ohio 1982); Bodine’s, Inc. v. Sunny-O, Inc., 494 F.Supp. 1279, 1286 (N.D.Ill.1980) ; Busch v. Sea World of Ohio, 95 F.R.D. 336, 341 (W.D.Pa.1982). This court is routinely called upon to apply the law of other jurisdictions in diversity actions; hence, the possibility that Georgia law might govern this action is not of great moment.

COST EFFECTIVENESS AND EASE OF ACCESS TO SOURCES OF PROOF

Defendant accurately notes that the costs involved in securing the presence of witnesses and the relative ease of access to sources of proof such as records and documents are relevant considerations in a motion for transfer. American Standard, Inc. v. Bendix Corp., supra at 264. As to the former point, the discussion concerning the relative financial positions of the parties is largely dispositive. Accepting as true, as one may reasonably do, the assertion that the production of witnesses would be less costly in Georgia than in this forum, the court is inclined to discount this as a meaningful factor for transfer due to the presumably ample financial resources of defendant. Neff Athletic Lettering Co. v. Walters, 524 F.Supp. 268, 274 (S.D.Ohio 1981) . A similar conclusion is warranted with respect to the documents and records of defendant said to be located in Georgia, since any such documents can easily be photocopied and transported from their place of storage. American Standard, Inc. v. Bendix Corp., supra at 264.

CONGESTION OF COURT’S CALENDAR

Finally, defendant has suggested that an examination of the respective case loads of this court and the district court in Georgia might support transfer of this case to Georgia. See, Neff Athletic Lettering Co. v. Walters, supra at 274 (docket congestion is appropriate factor to be considered in determining propriety of transfer). The court has not conducted an inquiry into the size of its docket as compared to that of the Northern District for Georgia, as the court concludes that retention of the case in the present forum will not unduly delay trial of the matter. In any event, this factor would be of little weight, absent a truly exceptional disparity which might exist between the two dockets. Kisko v. Penn Central Transportation Co., 408 F.Supp. 984, 987 (M.D.Pa.1976).

CONCLUSION

Taking into account all of the foregoing factors, the court concludes that transfer of this action to Georgia would, at best, slightly shift the inconvenience and burdens of litigation from defendant to plaintiffs. While the convenience of the witnesses would be somewhat better served by a Georgia forum, the countervailing factor of Robert Houk’s medical condition and, to a lesser degree, the parties’ relative financial positions, persuade the court that transfer of this matter to the Northern District of Georgia would not be in the interest of justice. Defendant has presented a close question to the court, but has failed to make the strong showing which would be necessary in order to warrant disturbing plaintiffs’ choice of forum.

It is, accordingly,

ORDERED that defendant’s motion that this cause be transferred to the United States District Court for the Northern District of Georgia under 28 U.S.C. § 1404(a) shall be and the same is hereby denied.

      . Plaintiff's wife and children had maintained their residence in Missouri while he was temporarily employed in Georgia.

      . There is no dispute that the present action "might have been brought” in the district court for the Northern District of Georgia. Instead, the parties’ disputes center on whether transfer to that forum would be for the convenience of the parties and witnesses and in the interest of justice.

      . In defendant's estimation, the trial of this matter would only take four days.

      . Whether the court would permit, as plaintiffs suggest it should, a jury visit to the Swope Ridge facility either to view plaintiffs injuries or hear testimony from him, is a question left unruled at present.

      . Any weight to be accorded this factor is arguably diminished by the nature of the witnesses’ occupations, as experience suggests that the testimony of construction workers, like that of seamen, must often be given in the form of depositions. See, Drees v. Lykes Bros. S.S. Co., 500 F.Supp. 15, 17 (S.D.N.Y.1980).