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In re Application of Pola Maritime, Ltd.

United States District Court, S.D. Georgia, Savannah Division

August 29, 2017

In Re Application of Pola Maritime, Ltd., for an Order Pursuant to 28 U.S.C. § 1782 to Conduct Discovery for Use in Foreign Proceedings

          ORDER

         Claimant Pola Maritime, Ltd. (“Pola”) has lodged a claim against respondents Agribusiness United Savannah Logistics, LLC (“Agribusiness Savannah”), and Agribusiness United DMCC (Dubai), LLC (“Agribusiness Dubai”) before the London Maritime Arbitrators Association (LMAA). See doc. 1. Pola came to this Court seeking (and received) subpoenas to serve in this district, including Fed.R.Civ.P. 45(d)(3) subpoenas upon Agribusiness Dubai, Agribusiness United Multi Commodities, Inc. (“Agribusiness Commodities”) and Agribusiness United North American Corporation (“Agribusiness North American”). See doc. 2. Objectors Agribusinesses Commodities and North American have moved to quash the subpoenas (docs. 10, 11 & 21)[1] and Pola has cross-moved to compel them (doc. 18).

         I. BACKGROUND[2]

         Pola chartered the M/V N Schelde to transport agricultural cargo from Argentina to Atlantic Morocco, in a charter agreement with Agribusiness Savannah with a choice of law provision (English law) and choice of forum for any dispute (arbitration in accordance with the rules of the LMAA). A dispute arose, and Pola initiated arbitral proceedings against Agribusinesses Savannah and Dubai.

         Pola contends that Agribusiness Dubai is actually the principal to the charter agreement -- not Agribusiness Savannah, which signed as Dubai's agent.[3] In the arbitral proceeding, Pola seeks: 1) indemnity from either or both Agribusinesses Savannah and Dubai for pending misdelivery/conversion claims, and 2) outstanding freight and demurrage (a charge for failure to load or discharge the ship within the time agreed) damages. The documents currently sought would allegedly illuminate the relationships among the various Agribusiness entities, for use in the proceeding before the LMAA.[4]

         III. ANALYSIS

         Objectors dispute that the subpoenas were properly issued pursuant to 28 U.S.C § 1782. Docs. 10 & 11; see also doc. 18, Exh. 1 (Agribusiness North America's objection and response to subpoena) & Exh. 2 (Agribusiness Commodities' objection and response to subpoena). Under § 1782(a), “[t]he district court in which a person resides or is found may order him to give his testimony or statement or to produce a document or other thing for use in a proceeding in a foreign or international tribunal . . . . The order may be made . . . upon the application of any interested person and may direct that the testimony or statement be given, or the document or other thing be produced before a person appointed by the court.” A district court is authorized to grant an application if the following statutory requirements are met:

(1) the request must be made “by a foreign or international tribunal, ” or by “any interested person”; (2) the request must seek evidence, whether it be the “testimony or statement” of a person or the production of “a document or other thing”; (3) the evidence must be “for use in a proceeding in a foreign or international tribunal”; and (4) the person from whom discovery is sought must reside or be found in the district of the district court ruling on the application for assistance.

In re Clerici, 481 F.3d 1324, 1331-32 (11th Cir. 2007) (citing 28 U.S.C. § 1782(a)); see also In re Application of Microsoft Corp., 428 F.Supp.2d 188, 192 (S.D.N.Y. 2006). Here, as claimant in the arbitration, Pola is certainly an “interested person, ” seeking evidence found in this district, and that evidence sought is certainly within the meaning of § 1782. So, the question is whether the LMAA is a “foreign tribunal” for the purpose of § 1782.

         A. Foreign Tribunals

         As to what comprises a “foreign tribunal, ” the Supreme Court has noted that

when Congress established the Commission on International Rules of Judicial Procedure in 1958, it instructed the Rules Commission to recommend procedural revisions “for the rendering of assistance to foreign courts and quasi-judicial agencies.” Section 1782 had previously referred to “any judicial proceeding.” The Rules Commission's draft, which Congress adopted, replaced that term with “a proceeding in a foreign or international tribunal.” Congress understood that change to “provid[e] the possibility of U.S. judicial assistance in connection with [administrative and quasi-judicial proceedings abroad].” S. Rep. No. 1580, at 7-8, U.S. Code Cong. & Admin. News 1964, pp. 3782, 3788; see Smit, International Litigation 1026-1027, and nn. 71, 73 (“[t]he term ‘tribunal' . . . includes investigating magistrates, administrative and arbitral tribunals, and quasi-judicial agencies, as well as conventional civil, commercial, criminal, and administrative courts”; in addition to affording assistance in cases before the European Court of Justice, § 1782, as revised in 1964, “permits the rendition of proper aid in proceedings before the [European] Commission in which the Commission exercises quasi-judicial powers”).

Intel Corp. v. Advanced Micro Devices, Inc., 542 U.S. 241, 247 (2004). Thus courts, as well as “quasi-judicial agencies” and “arbitral tribunals, ” comprise the types of bodies that § 1782 means to address. Pola contends that the LMAA is one such tribunal; Agribusinesses North American and Commodities disagree. Docs. 10 at 7 & 11 at 7 (arguing Pola is restricted to the discovery and disclosure procedures authorized by the LMAA and can't come fishing around the Southern District of Georgia with any federal subpoenas).

         The Intel court, in setting forth a functional description of a “foreign tribunal” under § 1782, focused on the judicial reviewability of the decisions of the European Commission in determining that the body was a foreign or international tribunal under § 1782. 542 U.S. at 258 (the Commission's role “as a first-instance decisionmaker, ” subject to judicial review, did not “exclude” it “from § 1782(a)'s ambit”). And awards by the LMAA are reviewable by the English Courts pursuant to the English Arbitration Act of 1996.[5] Hence, while the LMAA “is much like a purely private arbitration, ” its reviewability by a true judicial body brings it within the § 1782 definition of a “foreign tribunal.” Ex rel Application of Winning (HK) Shipping Co. Ltd., 2010 A.M.C. 1761, 1773-74 (C.D. Cal. 2010); see also In re Ex Parte Application of Kleimar N.V., 220 F.Supp.3d 517 (S.D.N.Y. 2016) (the LMAA is a foreign tribunal within the meaning of § 1782); In re Owl Shipping, LLC, 2014 WL 5320192 at * 2 (D.N.J. Oct. 17, 2014) (same).

         B. The ...


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