Karim v. Finch Shipping Co ( 2001 )

REVISED OCTOBER 16, 2001
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_____________________
No. 00-30683
_____________________
NOOR BEGUM KARIM, Wife of; FAZAL KARIM
Plaintiffs - Appellants - Cross-Appellees
v.
FINCH SHIPPING COMPANY, LTD.; ET AL
Defendants
FINCH SHIPPING COMPANY, LTD.
Defendant - Appellee - Cross-Appellant
_________________________________________________________________
Appeals from the United States District Court
for the Eastern District of Louisiana
_________________________________________________________________
September 5, 2001
Before KING, Chief Judge, BARKSDALE, Circuit Judge, and SCHELL,*
District Judge.
KING, Chief Judge:
In this maritime personal injury case, both parties appeal
the judgment of the district court. For the following reasons,
we AFFIRM.
*
District Judge of the Eastern District of Texas,
sitting by designation.
I. FACTUAL BACKGROUND
On January 18, 1995, Plaintiff/Appellant/Cross-Appellee
Fazal Karim, a citizen of Bangladesh, was engaged as a seaman
aboard the M/V LOUSSIO, a Panamanian-flag bulk carrier owned by
Defendant/Appellee/Cross-Appellant Finch Shipping Company, Ltd.
(“Finch”), a Maltese corporation. While at sea off the coast of
Bermuda, on August 17, 1995, Karim was seriously and permanently
injured when he slipped and fell some twenty to thirty feet to
the bottom of a cargo hold.1 He endured severe injuries from his
fall: he fractured his lumbar vertebrae; he fractured, on his
left side, his hip, pelvis, leg, ankle, heel, and wrist; he
incurred several herniated discs in his back and neck; and he
suffered a detached retina in his right eye.
During Karim’s evacuation out of the hold, he experienced
acute pain. Once in the vessel’s infirmary, Karim was
administered aspirin and non-narcotic medication because other
pain medications, including codeine and morphine, had expired.
Karim was unable to move and unable to use the bathroom
independently. He remained in this condition for nine days.
Captain Mohammed Yosuf contacted the international medical
service, C.I.R.M. Medical Italia, by telex for assistance.
Although Captain Yosuf was advised by doctors in Rome to evacuate
1
The district court sets forth the details of Karim’s
fall in its opinion. See Karim v. Finch Shipping Co., 94 F.
Supp. 2d 727, 731-32 (E.D. La. 2000).
2
Karim, Captain Yosuf could not do so because he was unable to
obtain helicopter service from Bermuda due to an impending
tropical storm. Captain Yosuf chose to proceed past the Bahamas
and Florida. Following discussions with the Coast Guard and
C.I.R.M. doctors, he directed the vessel to New Orleans. During
this nine-day voyage, Karim was in excruciating pain, an ordeal
that the district court described as “a window into Hell.” Karim
v. Finch Shipping Co. (“Karim I”), 94 F. Supp. 2d 727, 732 (E.D.
La. 2000). Upon arrival in New Orleans, Karim was evacuated by
helicopter to Jo Ellen Smith Hospital in Algiers, Louisiana,
where he received extensive medical treatment, including various
surgeries.
II. PROCEDURAL HISTORY
On November 30, 1995, Karim and his wife, Noor Begum Karim,
brought suit against Finch and six other parties in the Civil
District Court for the Parish of Orleans, State of Louisiana.
Then, on December 5, 1995, Karim brought suit in the United
States District Court for the Eastern District of Louisiana,
seeking to enjoin the Immigration and Naturalization Service
(“INS”) from deporting him. He sought this injunction because of
his debilitated condition and urgent need for medical care. The
district court granted Karim’s request for a temporary
restraining order against the INS. Subsequently, on December 15,
3
the district court issued a preliminary injunction preventing
Karim’s deportation.
Also on December 15, Karim filed an action in the same
federal district court against the M/V LOUSSIO in rem, Finch, and
several other parties. Finch posted a security bond for the
vessel in district court, and it was released on December 21,
1995. Shortly thereafter, on December 26, 1995, Finch entered an
appearance and filed an answer and claim.
In addition, on April 3, 1996, Finch instituted a separate
limitation of liability proceeding pursuant to 46 U.S.C. App.
§ 1852 in the same district court. The district court then
entered a monition3 and concursus4 in this limitation action,
restraining the prosecution of any state court claims and
requiring all parties with claims against Finch to direct those
claims to its court. Karim filed an answer, contesting Finch’s
right to limitation of liability and seeking damages for his
injuries under the Jones Act, 46 U.S.C. § 688, and general United
States maritime law. On October 16, 1996, after receiving the
appropriate stipulations, the district court stayed the
limitation action, lifted the monition, and permitted Karim to
2
See infra note 7.
3
See infra note 8.
4
See infra text preceding note 8.
4
pursue his claims against Finch in state court, all the while
preserving Finch’s right to seek limitation in its court.
In April 1997, the district court granted Karim’s motion to
voluntarily dismiss his claims in Karim’s federal action and
entered judgment in favor of the defendants, which was
subsequently affirmed by this court. See Karim v. Finch
Shipping, No. 97-31027, 177 F.3d 978 (5th Cir. 1999) (unpublished
table opinion). Thereafter, the actions then pending were
Karim’s state court suit against Finch, and Finch’s federal
limitation proceeding.
Also, on April 10, 1997, in another proceeding, the district
court dissolved the preliminary injunction preventing Karim’s
deportation because Karim’s medical condition had improved and he
was capable of travel. Karim was then returned to Bangladesh.
On July 9, 1997, the state trial court found that it lacked
personal jurisdiction over Finch, and the Louisiana Fourth
Circuit Court of Appeal affirmed. See Karim v. Finch Shipping
Co., 97-2518 (La. App. 4 Cir. 8/26/98), 718 So. 2d 572.5 The
5
We note that the Louisiana Fourth Circuit Court of
Appeal in a subsequent case held that it should not have
considered the issue on the merits in Karim. See Jackson v.
America’s Favorite Chicken Co., 98-0605 (La. App. 4 Cir. 2/3/99),
729 So. 2d 1060, 1065 (stating that an appeal from a partial
summary judgment that lacks requisite designation by the trial
court or an agreement of the parties to that effect may not be
converted to a supervisory writ and then considered on the merits
and overruling the procedure in Karim).
5
Louisiana Supreme Court denied review. See Karim v. Finch
Shipping Co., 98-2499 (La. 11/25/98), 729 So. 2d 568.
On June 30, 1998, Finch moved to dismiss voluntarily its
federal limitation action, but the district court denied the
motion because the issues regarding claims against the res and
limitation of liability had been joined. On May 17, 1999, Finch
moved to dismiss its claim for 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. The district court denied Finch’s
motion to dismiss, but granted summary judgment in favor of Finch
on the penalty wage claim and dismissed Karim’s wife’s claims for
lack of evidence.
The district court conducted a trial on Finch’s limitation
petition on January 24 and 25, 2000. Additional testimony
regarding the law of Bangladesh was heard on March 20, 2000. On
April 14, 2000, the district court entered its detailed Findings
of Fact and Conclusions of Law in which it made the following
rulings: (1) the district court properly had jurisdiction in the
matter; (2) Finch was entitled to limitation, but not
exoneration, of liability; (3) the choice-of-law analysis pointed
to Bangladeshi law; (4) the case was not appropriate for a forum
non conveniens dismissal; (5) Karim was entitled to $63,668.16
for past medical expenses, $20,000 for future medical expenses,
$13,081.28 for past lost wages, $26,451.70 for lost future wages,
6
and $160,000 for general damages (pain and suffering); (6) Karim
was not entitled to nominal, aggravated, or punitive damages; (7)
Karim was entitled to prejudgment interest on past losses
(totaling $176,749.44) at a rate of 5.6% per annum from the date
the limitation action was reactivated in federal court (November
25, 1998) until the date of the district court judgment (April
14, 2000); and (8) Karim was entitled to $70,000 for litigation
costs, including attorneys’ fees. See Karim I, 94 F. Supp. 2d at
746. The district court denied Karim’s post-trial motions, see
Karim v. Finch Shipping Co. (“Karim II”), 111 F. Supp. 2d 783,
784-85 (E.D. La. 2000), and Karim timely appealed. Finch also
timely cross-appealed.
III. PROPRIETY OF THE DISTRICT COURT’S JUDGMENT
As both Karim and Finch are cross-appealing almost all
aspects of the district court’s ruling, we analyze at the outset
those issues presenting threshold matters, which may pretermit
the determination of other points on appeal. Therefore, we
address the following issues in turn: (1) whether the district
court properly determined that it had jurisdiction; (2) whether
the district court erred in refusing to dismiss the action on
forum non conveniens grounds; (3) whether the district court
erred in determining a “quantum” for general damages under
Bangladeshi law; (4) whether the district court’s general damage
7
award was excessive under Bangladeshi law; (5) whether the
district court erred by failing to apply the codified general
maritime law of Bangladesh — the Merchant Shipping Ordinance (the
“MSO”); (6) whether the district court erred in granting summary
judgment on the United States penalty wage statute; (7) whether
the district court erred in failing to award maintenance under
the employment contract, the MSO, or the United States general
maritime law; (8) whether the district court erred in its
determination of prejudgment interest; and (9) whether the
district court erred in its determinations of litigation costs,
including attorneys’ fees.
A. Jurisdiction
We provide first a brief background on limitation of
liability actions. Then, we analyze Finch’s jurisdictional
challenge.
1. Statutory Background
This case concerns the Limitation of Liability Act of 1851,
46 U.S.C. App. §§ 181-196 (amended 1936) (the “Act”). “The Act
was primarily patterned after the English limitation act, 26 Geo.
3, ch. 86 (1786).” Vatican Shrimp Co. v. Solis, 820 F.2d 674,
677 (5th Cir. 1987); see also Just v. Chambers, 312 U.S. 383, 385
(1941) (stating that the limitation of liability statutory
provisions were “enacted in light of the maritime law of modern
8
Europe and of legislation in England”). The Supreme Court has
described the purpose of the Act, stating:
[T]he great object of the [Act] was to encourage
shipbuilding and to induce the investment of money in
this branch of industry[] by limiting the venture of
those who build the ship to the loss of the ship itself
or her freight then pending, in cases of damage or
wrong, happening without the privity or knowledge of
the ship owner, and by the fault or neglect of the
master or other persons on board.
Hartford Accident & Indem. Co. v. S. Pac. Co., 273 U.S. 207, 214
(1927).
The Act provides shipowners two alternative legal channels
to initiate their limitation of liability rights. Under 46
U.S.C. App. § 183,6 a shipowner can “set up [limitation] as a
defense” by pleading the general substantive provisions of § 183
in an answer filed in any court, including a state court. See
Langnes v. Green, 282 U.S. 531, 543 (1931). However, when the
6
46 U.S.C. App. § 183 states in relevant part:
(a) Privity or knowledge of owner; limitation
The liability of the owner of any vessel, whether
American or foreign, for any embezzlement, loss, or
destruction by any person of any property, goods, or
merchandise shipped or put on board of such vessel, or
for any loss, damage, or injury by collision, or for
any act, matter, or thing, loss, damage, or forfeiture,
done, occasioned, or incurred, without the privity or
knowledge of such owner or owners, shall not, except in
the cases provided for in subsection (b) of this
section, exceed the amount or value of the interest of
such owner in such vessel, and her freight then
pending.
46 U.S.C. App. § 183 (Supp. 2001).
9
“right of [the shipowner] to a limited liability [is] brought
into question . . . [it brings the action] within the exclusive
power of a court of admiralty.” Id. at 542.
The shipowner’s second option is to file a limitation
petition in federal district court under 46 U.S.C. App. § 185.7
The 1936 Amendments to the Act added the requirement that the
shipowner must file such a petition “within six months after a
claimant shall have given to or filed with such owner written
notice of claim.” 46 U.S.C. App. § 185. This six-month time
limit is not found in § 183. If the shipowner chooses to file a
§ 185 petition, the shipowner also must post a bond “equal to the
7
46 U.S.C. App. § 185 provides:
The vessel owner, within six months after a claimant
shall have given to or filed with such owner written
notice of claim, may petition a district court of the
United States of competent jurisdiction for limitation
of liability within the provisions of this chapter and
the owner (a) shall deposit with the court, for the
benefit of claimants, a sum equal to the amount or
value of the interest of such owner in the vessel and
freight, or approved security therefor, and in addition
such sums, or approved security therefor, as the court
may from time to time fix as necessary to carry out the
provisions of section 183 of this title, or (b) at his
option shall transfer, for the benefit of claimants, to
a trustee to be appointed by the court his interest in
the vessel and freight, together with such sums, or
approved security therefor, as the court may from time
to time fix as necessary to carry out the provisions of
section 183 of this title. Upon compliance with the
requirements of this section all claims and proceedings
against the owner with respect to the matter in
question shall cease.
46 U.S.C. App. § 185 (1958).
10
amount or value of the interest of such owner in the vessel and
freight” with the district court. See id.
The procedure provided for in § 185 is known as a
“concursus,” and the purpose behind such a proceeding in federal
court is to permit all actions against the shipowner to be
consolidated into a single case so that all claims may be
disposed of simultaneously: “When a shipowner files a federal
limitation action, the limitation court stays all related claims
against the shipowner pending in any forum, and requires all
claimants to timely assert their claims in the limitation court.”8
Magnolia Marine Transp. Co. v. Laplace Towing Corp., 964 F.2d
1571, 1575 (5th Cir. 1992). “The court takes jurisdiction to
entertain those claims without a jury and ensures that the
shipowner who is entitled to limitation is not held to liability
in excess of the amount ultimately fixed in the limitation suit
(the limitation fund).” Id. (internal citations omitted). As
the Supreme Court explained:
[In essence, the § 185 proceeding] is the
administration of equity in an admiralty court. . . .
[The proceeding] looks to a complete and just
disposition of a many cornered controversy, and is
applicable to proceedings in rem against the ship as
well as to proceedings in personam against the owner,
the limitation extending to the owner’s property as
well as to his person.
8
The admiralty court’s order in this regard is commonly
referred to as a “monition.”
11
Hartford, 273 U.S. at 216 (emphasis and internal citations
omitted).
2. Jurisdictional Analysis
“We review jurisdictional determinations de novo.” Hidden
Oaks Ltd. v. City of Austin, 138 F.3d 1036, 1041 (5th Cir. 1998);
see also Groome Res. Ltd., L.L.C. v. Parish of Jefferson, 234
F.3d 192, 198 (5th Cir. 2000) (“Jurisdiction is a question of law
which we review de novo.”).
The Supreme Court has clearly stated: “The jurisdiction of
the admiralty court attaches in rem and in personam by reason of
the custody of the res put by the petitioner into its hands.”
Hartford, 273 U.S. at 217 (emphasis omitted). “The court of
admiralty, in working out its jurisdiction, acquires the right to
marshal all claims, whether of strictly admiralty origin or not,
and to give effect to them by the apportionment of the res and by
judgment in personam against the owners, so far as the court may
decree.” Id. (emphasis omitted); see also Just, 312 U.S. at 386(stating that a court of admiralty in a limitation proceeding
“may furnish a complete remedy for the satisfaction of [all]
claims by distribution of the res and by judgments in personam
for deficiencies against the owner, if he is not released by
virtue of that statute” (emphasis omitted))9; The Chickie, 141
9
We note that Shaffer v. Heitner, 433 U.S. 186 (1977),
does not cast doubt upon the statements in Hartford and Just that
the admiralty court also has “in personam” jurisdiction via the
res. In Shaffer, the Supreme Court held that the requirements
12
F.2d 80, 84 (3d Cir. 1944). The Supreme Court has also stated
that the admiralty court retains its jurisdiction regardless of
how the limitation issue is resolved. See Just, 312 U.S. at 386-
87; Hartford, 273 U.S. at 220.
As these statements by the Supreme Court indicate, we do not
confront this issue res nova. Although Finch repeatedly asserts
that it is a novel question whether a shipowner “waives” its
jurisdictional defenses by filing a “defensive” limitation of
liability petition, as explained above and further discussed
below, Finch’s characterization of the question is inaccurate,
and the question itself is not novel.
Finch’s argument rests on its assertion that it had a right
under federal law to invoke a concursus and a statutory right to
seek limitation of liability in federal court. Finch claims that
it was “compelled” to file a petition under 46 U.S.C. App. § 185
for “quasi in rem” and “in personam” jurisdiction are identical –
i.e., the standard set forth in International Shoe Co. v.
Washington, 326 U.S. 310 (1945), and its progeny. See Shaffer,
433 U.S. at 212. Quasi in rem jurisdiction refers to a court
obtaining in personam jurisdiction via property located in the
jurisdiction.
In cases such as the present one, the limitation petitioner
voluntarily and personally places the res in the hands of the
court. This situation is unlike the scenario in Shaffer in which
the property located in the jurisdiction was unrelated to the
lawsuit and was not placed in the hands of the court by the party
itself. Moreover, in Burnham v. Superior Court of California,
495 U.S. 604 (1990), the Supreme Court declined to extend Shaffer
and admonished the petitioner for “wrenching” its statements in
Shaffer out of context. See id. at 619-21.
We also note that, in the case before us, a judgment in
excess of the res is not at issue.
13
within the provision’s six-month time limitation; otherwise, it
would have forfeited its access to limitation of liability.
Finch argues that its limitation action was therefore “defensive”
in nature and filed only in response to Karim’s state court
action, which sought damages in excess of the value of the
vessel. In essence, Finch is claiming that, under the district
court’s ruling, shipowners face a Hobson’s choice — i.e., forego
their in personam jurisdiction defense, guaranteed by the Due
Process clause, or risk the possible loss of their right to seek
limitation of liability.
We do not agree. Finch is not facing a so-called “Hobson’s
choice.” Rather, Finch is simply attempting to invoke the
protections of a federal court without fulfilling its concomitant
responsibility as a result of that invocation. If a shipowner
wishes to contest the jurisdiction of a United States court, it
has every right to do so. However, if the shipowner wishes to
avail itself of the benefits offered by this forum (here, a
limitation of liability action), then it cannot complain that the
court had no power over it.10 By invoking the statutory
10
This is so even with our decision in Vatican Shrimp Co.
v. Solis, 820 F.2d 674 (5th Cir. 1987). Vatican Shrimp held that
a “defensive pleading in the state court answer [does] not
provide the federal court with jurisdiction to hear the
shipowner’s limitation claim.” Id. at 677. The consequence of
this holding is that a shipowner cannot always rely upon raising
limitation in a state court answer because, once the limitation
is contested, it falls within the exclusive jurisdiction of a
federal admiralty court. As such, if a shipowner has not filed
its § 185 petition within the six-month time frame, it forfeits
14
opportunity to limit its liability, the shipowner consents to the
jurisdiction of the court. As the district court succinctly
stated: Finch voluntarily provided the district court in rem
jurisdiction by commencing the limitation petition and placing
the res, or the bond, in the hands of the court, and Finch
invoked the powers of the court to require Karim to halt his
proceeding in another forum and to file in the limitation
action.11 Finch cannot now be permitted “to abandon its
limitation proceeding without prejudice and quietly float away.”
Karim I, 94 F. Supp. 2d at 734.
Moreover, Finch’s argument that the district court did not
retain jurisdiction because Karim chose to proceed in state
court, which subsequently dismissed his claims for lack of
jurisdiction, “misses the mark.” Id.that defense. In order to ensure access to limitation of
liability, shipowners must therefore file § 185 petitions in
federal court to account for the possibility that the petitions
may be contested. Finch asserts that, because of Vatican Shrimp,
it is essentially required to file a § 185 petition.
However, as stated in the text, Finch is not “required” to
take advantage of defenses offered under federal statutes; its
action is voluntary in that it made a strategic choice to avail
itself of a United States statutory defense to limit its
liability. Once again, if Finch wishes to take advantage of a
benefit offered by United States laws, it cannot be heard to
complain (after the need for the defense may have evaporated)
that the very United States court it voluntarily petitioned and
utilized had no power over it.
11
As recently as December 1998, Finch invoked the
protections of the district court. The district court denied
additional claims by Karim in federal court because of the
monition and concursus entered by the district court on Finch’s
behalf.
15
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 [the
district court], however, is an in rem proceeding.
. . . The fact that a state court . . . lacks in
personam jurisdiction does not deprive [the district
court] of its in rem jurisdiction.
Id. (emphasis omitted). We agree with the district court, which
stated, relying upon Just and Hartford, that it had “a
responsibility to provide a complete remedy to satisfy the
answers and claims filed in Finch’s limitation proceeding
pursuant to its requested monition.” Id.
Finch also argues that The Bremen v. Zapata Off-Shore Co.,
407 U.S. 1 (1972), and World Tanker Carriers Corp. v. M/V YA
MAWLAYA, 1996 WL 20874 (E.D. La. Jan. 18, 1996), rev’d, 99 F.3d
717 (5th Cir. 1996), support its position that the filing of a
defensive limitation action should not operate to deprive a
shipowner of an in personam jurisdiction defense. Again, Finch’s
arguments are unpersuasive.
In Bremen, the Supreme Court held that a forum selection
clause was prima facie valid and that it “should control absent a
strong showing that it should be set aside” and remanded the case
for a determination whether the clause was unreasonable and
unjust or invalid. See 407 U.S. at 15. The clause in Bremen
stated that disputes were to be resolved in London, England. The
Court stated that the filing of a limitation complaint in a
United States federal court did not nullify the prima facie
16
validity of the forum selection clause, focusing on the
“defensive” nature of the limitation proceeding. See id. at 19-
20. Finch thus claims that the result in Bremen “would not have
been possible if the filing of a defensive limitation action
irrevocably subjects the res to the jurisdiction of the court.”
Finch attempts to extend the Bremen holding to argue that a
“defensive” limitation proceeding does not definitively submit
the shipowner to the jurisdiction of the United States court.
Such an extension is untenable because it conflicts with Hartford
and is unsupported because the Bremen Court did not limit
Hartford in any fashion. We note first that the Bremen Court was
primarily motivated by its desire to temper the hostility toward
forum selection clauses, particularly at a time when
international transactions and agreements were beginning to
expand. See Bremen, 407 U.S. at 9, 15 (stating that forum
selection clauses “have historically not been favored by American
courts” and that “in the light of present-day commercial
realities and expanding international trade” such hostility could
not be sanctioned). The Court also emphasized that the “choice
of . . . forum was made in an arm’s-length negotiation by
experienced and sophisticated businessmen.” Id. at 12; see also
id. at 17 (stating that the case “involves a freely negotiated
international commercial transaction between a German and an
American corporation”).
17
Furthermore, the Court did not state that the federal
district court did not have jurisdiction over the action (or that
the parties could now assert an in personam jurisdiction
defense); rather, it stated that the district court should not
have exercised that jurisdiction: “The threshold question is
whether [the district] court should have exercised its
jurisdiction to do more than give effect to the legitimate
expectations of the parties, manifested in their freely
negotiated agreement, by specifically enforcing the forum
clause.” Id. at 12. So, while the res established federal court
jurisdiction, the district court in Bremen should have, in its
discretion, chosen not to exercise that jurisdiction.
Finch’s reliance on this court’s decision in World Tanker,
which dealt with Federal Rule of Civil Procedure 4(k)(2), is
similarly flawed. “Rule 4(k)(2) . . . sanctions personal
jurisdiction over foreign defendants for claims arising under
federal law when the defendant has sufficient contacts with the
nation as a whole to justify the imposition of United States’
[sic] law but without sufficient contacts to satisfy the due
process concerns of the long-arm statute of any particular
state.” World Tanker Carriers Corp. v. MV YA MAWLAYA, 99 F.3d
717, 720 (5th Cir. 1996) (emphasis omitted). Reversing the
district court, this court held that admiralty cases fell within
the ambit of Federal Rule of Civil Procedure 4(k)(2). See id. at
723.
18
Finch states that the World Tanker district court rejected
the argument that a shipowner had submitted to the jurisdiction
of the federal court by filing its limitation action and by
submitting a letter of undertaking. Finch argues further that,
on appeal, this court did not disturb the district court’s
holding that the filing of the limitation was a solely defensive
measure that did not subject the shipowner to the jurisdiction of
the court, but that this court reversed and remanded for a
consideration of the shipowner’s national contacts pursuant to
Rule 4(k)(2). Finch asserts that this remand would have been
unnecessary if this court had concluded that the voluntary filing
of a defensive limitation action subjects the shipowner to either
in rem or in personam jurisdiction.
First, we note that the reversed district court in World
Tanker appears to cite incorrectly to Bremen. As discussed supra
in this section, Bremen did not state that a limitation action
was insufficient to confer jurisdiction, but only that in some
cases (such as those involving a valid forum selection clause),
courts should employ their discretion not to exercise their
jurisdiction. Moreover, the World Tanker district court did not
mention the Supreme Court’s Hartford decision. In reversing and
remanding, this court explicitly did not address the jurisdiction
issue with regard to the limitation proceeding. See World
19
Tanker, 99 F.3d at 724.12 We will not ignore the explicit
dictates of long-established Supreme Court precedent on such a
flimsy (if not nonexistent) reed.
In sum, we are faced with a situation in which Finch filed a
limitation proceeding and placed the res in the hands of the
court, let the proceeding pend for four years, made use of the
concursus and monition, utilized the district court for its own
interests by, for example, attempting to maintain a multi-
claimant action by itself filing claims against other parties and
opposing Karim’s access to other courts, and then after the
vessel was sold (and the company defunct), filed a motion to
dismiss the limitation action on the basis of personal
jurisdiction and forum non conveniens.13 When the instant United
12
While the facts as set forth in the World Tanker case
do not indicate the precise nature of the limitation action, it
is possible that the jurisdiction was not perfected. The World
Tanker district court cited to Panaconti Shipping Co., S.A. v.
M/V YPAPANTI, 865 F.2d 705, 708 (5th Cir. 1989), for the
proposition that the letter of undertaking was insufficient to
trigger in rem jurisdiction. See World Tanker, 1996 WL 20874, at
*1. However, the statements made by the Panaconti court in this
regard dealt with a situation in which no res existed. See
Panaconti, 865 F.2d at 707. The vessel had not been arrested,
and the limitation petitioner had not posted security. See id.The Panaconti court found that although the court did not have
possession of the vessel or its bond, the letter of undertaking
sufficiently preserved in rem jurisdiction. See id. at 708. In
this case, by contrast, a res definitely existed and was placed
in the hands of the court by Finch.
13
So, in answer to Finch’s query, the reason that a
Bangladeshi seaman’s action against a Maltese ship is in federal
court is because the shipping company itself sought the
protection and benefits of United States law.
20
States laws cease to be of use, a party cannot extinguish the
proceedings. Shipowners cannot avail themselves of the benefits
under United States laws, but then refuse to bear the possible
burdens under those laws.
B. Forum Non Conveniens
“The forum non conveniens determination is committed to the
sound discretion of the trial court. It may be reversed only
when there has been a clear abuse of discretion; where the court
has considered all relevant public and private interest factors,
and where its balancing of these factors is reasonable, its
decision deserves substantial deference.” Piper Aircraft Co. v.
Reyno, 454 U.S. 235, 257 (1981) (emphasis omitted and added); see
also McLennan v. Am. Eurocopter Corp., 245 F.3d 403, 423 (5th
Cir. 2001) (“We review the district court’s denial of a motion to
dismiss for forum non conveniens for a clear abuse of
discretion.”).
The “doctrine of forum non conveniens proceed[s] from [the]
premise [that] . . . [i]n rare circumstances, federal courts can
relinquish their jurisdiction in favor of another forum.”
Quackenbush v. Allstate Ins. Co., 517 U.S. 706, 722 (1996)
(emphasis omitted). This doctrine enables a court to decline to
exercise its jurisdiction if the moving party establishes that
the convenience of the parties and the court and the interests of
justice indicate that the case should be tried in another forum.
Building upon its previous case in Gulf Oil Corp. v. Gilbert, 330
21
U.S. 501 (1947), the Supreme Court set out the framework for
analyzing forum non conveniens in an international context in
Piper Aircraft. First, “the court must determine whether there
exists an alternative forum.” Piper Aircraft, 454 U.S. at 254
n.22. Second, the court must determine which forum is best
suited to the litigation. See id. at 255.
The following factors are generally considered in the first
step: (1) amenability of the defendant to service of process and
(2) availability of an adequate remedy in the alternative forum.
See id. at 254-55 n.22; see also McLennan, 245 F.3d at 424. In
performing the second step, a court must consider whether
“certain private and public interest factors weigh in favor of
dismissal.” McLennan, 245 F.3d at 424.14
14
The “private interest” factors include:
the relative ease of access to sources of proof;
availability of compulsory process for attendance of
unwilling, and the cost of obtaining attendance of
willing, witnesses; possibility of view of [the]
premises, if view would be appropriate to the action;
and all other practical problems that make trial of a
case easy, expeditious and inexpensive[;] . . .
enforceability of judgment . . . [; and whether] the
plaintiff [has sought to] “vex,” “harass,” or “oppress”
the defendant.
Gulf Oil, 330 U.S. at 508.
The “public interest” factors include administrative
difficulties, reasonableness of imposing jury duty on the people
of the community, holding the trial in the view of those
affected, and local interest in having localized controversies
decided at home. See id. at 508-09.
22
The district court concluded that, although Finch had made a
timely motion to dismiss for forum non conveniens, the court
could not consider the motion until the limitation issue (which
depended upon United States law) had been decided. See Karim I,
94 F. Supp. 2d at 736-37. After resolving the limitation
question, the district court performed the familiar Gulf
Oil/Piper Aircraft forum non conveniens analysis and determined
that the private and public interest factors demonstrated that no
other forum was adequate, available, or more convenient than the
current one.
Finch claims that the district court erred in refusing to
dismiss the action on forum non conveniens grounds primarily
because it delayed consideration of the motion until the
resolution of the limitation issue. By doing so, Finch asserts
that the district court permitted the creation of the very
factors upon which it later relied to find that another forum was
not appropriate.
We note at the outset that the district court was perhaps
generous in characterizing Finch’s forum non conveniens motion as
“timely.” To be clear, Finch filed its first such motion in
response to Karim’s federal civil suit (which was eventually
dismissed without prejudice). The district court deferred ruling
on the motion to allow Karim to conduct discovery on the matter.
A few months after this first forum non conveniens motion, Finch
then instituted its limitation proceeding (the one before us on
23
appeal). Although Finch stated in its limitation petition that
it was reserving a forum non conveniens defense, it did not file
a motion to dismiss based on those grounds until approximately
three years later, on May 17, 1999. Finch claims that this delay
was attributable to Karim’s efforts to litigate in state court.
However, even assuming arguendo that the state litigation
interfered with Finch’s motion, Finch does not explain why it did
not urge the forum non conveniens motion in the time period
between its filing of the limitation petition (April 3, 1996) and
the district court’s authorization for Karim to litigate in state
court (October 16, 1996).
In any case, the district court’s ultimate refusal to
dismiss on forum non conveniens grounds was not a clear abuse of
discretion. Although the district court may have given the
impression in some of its statements that courts are always
obligated to resolve the limitation action before the forum non
conveniens issue, the court’s ultimate resolution of the forum
non conveniens issue is unaltered, as we explain below.
When limitation of liability proceedings and forum non
conveniens intersect, the limitation issue is simply taken as yet
another factor to consider in the well-established Gulf Oil/Piper
Aircraft framework. First, this approach fits within the
traditional forum non conveniens test — i.e., Gulf Oil made clear
that the factors to be considered in the analysis were not
exclusive to the ones it set out. See Gulf Oil, 330 U.S. at 508;
24
see also Piper Aircraft, 454 U.S. at 249-50. And second, this
approach also harmonizes with the few reported decisions facing a
forum non conveniens issue in the context of a limitation
proceeding — i.e., some courts have dismissed the limitation
action based on forum non conveniens and some have not, depending
on the circumstances involved. See, e.g., Argonaut P’ship, L.P.
v. Bankers Tr. Co., Nos. 96 CIV. 1970 (MBM), 96 CIV. 2222 (MBM),
available at 1997 WL 45521, at *15 (S.D.N.Y. Feb. 4, 1997)
(denying the motion to dismiss on the basis of forum non
conveniens and citing, among others, In re Maritima Aragua, S.A.,
823 F. Supp. 143 (S.D.N.Y. 1993), which involved various claims
in the context of a limitation proceeding); In re Am. President
Lines, Ltd., 890 F. Supp. 308, 318 (S.D.N.Y. 1995) (denying the
motion to dismiss on the basis of forum non conveniens); In re
Maritima Aragua, S.A., 823 F. Supp. 143, 150-51 (S.D.N.Y. 1993)
(same). But see In re Geophysical Serv., Inc., 590 F. Supp.
1346, 1361 (S.D. Tex. 1984) (dismissing the action on forum non
conveniens grounds).
As for the “limitation proceeding” factor in the forum non
conveniens inquiry, we agree with the district court that United
States law governed the limitation action. United States courts
“must apply foreign limitation law if the substantive liability
of the parties is governed by a foreign law and if the limitation
law of the foreign country is such an integral part of the
substantive law governing the action that it can be said to
25
‘attach’ to the substantive liability law.” Korea Shipping Corp.
v. Tokio Marine & Fire Ins. Co., 919 F.2d 601, 604-05 (9th Cir.
1990) (citing Black Diamond S.S. Corp. v. Robert Stewart & Sons,
Ltd. (The Norwalk Victory), 336 U.S. 386, 395 (1949)). “If
either of the two conditions is not met, then U.S. courts apply
the rule in [Oceanic Steam Navigation Co. v. Mellor (The
Titanic), 233 U.S. 718 (1914)]: U.S. limitation law controls.”
Id. at 605.
In this case, Bangladeshi law was found to be the applicable
substantive law, a determination that neither party strongly
disputes on appeal.15 However, Finch did not offer any evidence
or make any argument that Bangladeshi limitation law even
existed, much less that it is so integral that it “attached” to
the substantive liability law. Finch did not contest at any
point the determination that the “law of the forum” rule, based
on Mellor, dictated that United States law applied to its
limitation proceeding.16
This determination informs the consideration of the forum
non conveniens inquiry. In addition to private and public
interest factors, such as Karim receiving medical treatment in
the United States, evidence and testimony being easily accessible
15
See infra note 18.
16
In fact, in its briefs, Finch concedes that its case is
distinguishable from the Geophysical Services case in that
Canadian limitation law was found applicable in the latter case.
26
in this forum, and counsel for both parties being based in this
forum, the fact that United States limitation law applies also
weighs against dismissal. See, e.g., Argonaut P’ship, 1997 WL
45521, at *15 (stating that “courts have denied forum non
conveniens motions where a related action, requiring much of the
same evidence, was pending also in the jurisdiction and could not
be dismissed”); Maritima Aragua, 823 F. Supp. at 147 (denying a
motion to dismiss on the basis of forum non conveniens and
stating that the “crucial factor in the case at bar [was] the
presence of the Limitation Proceeding brought by the
[shipowners]”); id. at 150-51; see also Am. President Lines, 890
F. Supp. at 318 (holding that the doctrine of forum non
conveniens did not compel dismissal of related actions for
limitation of vessel owners’ liability); Geophysical Serv., 590
F. Supp. at 1357, 1361 (finding the Canadian limitation act
applicable and dismissing the action on the basis of forum non
conveniens).17
As we have recently stated, “[t]he district court’s analysis
. . . is consistent with the procedural framework [of Gulf
Oil/Piper Aircraft that] the district court is obligated to use.
Moreover, there is nothing unreasonable about the conclusions
reached therein. Thus, there is no abuse of discretion and no
reversible error arising from the district court’s denial of
17
See supra note 16.
27
. . . [the] motion to dismiss for forum non conveniens.”
McLennan, 245 F.3d at 425 (footnote omitted).
C. Quantum for General Damages Under Bangladeshi Law
As stated above, the district court determined that the
substantive law of Bangladesh should apply to Karim’s claims. It
then determined the appropriate measure of Karim’s damages (i.e.,
quantum) under Bangladeshi law. Because of the dearth of
reported Bangladeshi cases on quantum in tort, the district court
looked to English and Indian precedent for guidance. The
district court found that under Indian jurisprudence, a general
damage award for pain and suffering would be approximately in the
range of U.S. $50,000 and U.S. $100,000 for Karim’s type of
injuries. The court also stated that each case depended on its
own unique facts and circumstances and chided Karim for falsely
assuming that general damages can be measured without regard to
context. The district court thoroughly analyzed all available
information and awarded Karim a total of Taka 8,000,000 (U.S.
$160,000).
Karim objects to this determination, arguing that Federal
Rule of Civil Procedure 44.1 requires that the party asserting
application of foreign law demonstrate the applicability of the
foreign law to the court. Karim states that Finch has not
established Bangladeshi law as to quantum, which is evident by
28
the district court’s resort to other nations’ caselaw.18
Describing the policies underlying this requirement, he states
further that, absent sufficient proof of foreign law, the court
shall apply the law of the forum (in this case, that of the
United States). As such, he faults the district court for
entering into a “contextual analysis” of Indian and English
jurisprudence, which, he claims, is both subjective and
inaccurate.
“We review questions regarding foreign law de novo. This
analysis is plenary.” Banco de Credito Indus., S.A. v. Tesoreria
Gen., 990 F.2d 827, 832 (5th Cir. 1993) (internal quotations and
citations omitted). “When the parties have failed to
conclusively establish foreign law, a court is entitled to look
to its own forum’s law in order to fill any gaps.” Id. at 836;
see also 9 CHARLES ALAN WRIGHT & ARTHUR R. MILLER, FEDERAL PRACTICE AND
PROCEDURE § 2447 (1995) (stating that when foreign law cannot be
18
Federal courts sitting in admiralty apply the admiralty
choice-of-law analysis established in the Supreme Court cases of
Lauritzen v. Larsen, 345 U.S. 571 (1953), and Hellenic Lines,
Ltd. v. Rhoditis, 398 U.S. 306 (1970). Under the Lauritzen-
Rhoditis framework (as it is commonly called), courts examine the
following nonexhaustive list of factors to determine which
substantive law controls: (1) the place of the wrongful act, (2)
the law of the flag, (3) the allegiance or domicile of the
injured, (4) the allegiance of the defendant shipowner, (5) the
place of contract, (6) the inaccessibility of the foreign forum,
(7) the law of the forum, and (8) the base of operations of the
shipowner. See Solano v. Gulf King 55, Inc., 212 F.3d 902, 905
(5th Cir. 2000). While Karim mentions in passing that the above
factors point toward United States law, he focuses his criticisms
on the district court’s utilization of English and Indian
precedent in its application of Bangladeshi law.
29
ascertained, the district court might reconsider its initial
decision to apply foreign law and decide instead to apply
domestic law (citing, inter alia, Symonette Shipyards, Ltd. v.
Clark, 365 F.2d 464, 468 n.5 (5th Cir. 1966))).
Following the trial on the liability and limitation phase of
the case, the district court held a trial on the quantum aspect
of the matter. There were only two published Bangladeshi tort
cases available to the district court, and neither was directly
relevant to the quantum issue at hand. The district court also
heard testimony and argument from four expert witnesses, and the
court found these witnesses to be knowledgeable as to the laws of
Bangladesh, India, and the United Kingdom.19 These experts
informed the court that Bangladeshi courts would look to Indian
and British cases for guidance.20
Thus, Finch marshaled as much information as possible to
illuminate what a Bangladeshi court might do under these
circumstances. This case is distinguishable from, for example,
19
The district court’s description of the historical
origins of Bangladesh concisely and adeptly explains why
Bangladeshi legal traditions draw from the jurisprudence of
India, Pakistan, and the United Kingdom. See Karim I, 94 F.
Supp. 2d at 738.
20
Karim argues that while Bangladeshi legal experts
confirmed that a Bangladeshi court would look to English
precedent to determine the “principles” of various causes of
action (such as tort liability), there was no support for the
conclusion that such reference would be made in matters of
“quantum.” We do not agree. The record does contain information
that Bangladeshi courts would look to these nations’ cases for
principles or elements of quantum.
30
Banque Libanaise Pour Le Commerce v. Khreich, 915 F.2d 1000,
1006-07 (5th Cir. 1990), in which the party championing Abu Dhabi
law did not call any expert witnesses and only provided the court
with a copy of a statute and general materials. Finch met its
obligations, and the district court had sufficient information
upon which to make its quantum determination. Therefore, the
district court did not err in making a determination of quantum
under Bangladeshi law by applying English and Indian precedent.
D. General Damages
As noted above, the district court awarded Karim $160,000 in
general damages. Finch contests this determination, asserting
that the award was excessive under Bangladeshi law. Finch argues
that the district court’s award is akin to awarding an American
plaintiff in excess of $9 million. Finch asserts further that
its expert opined, based on Indian cases, that a Bangladeshi
court would award damages in the range of Taka 250,000 (U.S.
$5,000).
Karim responds that Finch’s analysis ignores its own
expert’s testimony regarding British cases and focuses only on
Indian caselaw. He also points out that the only reported
Bangladeshi case regarding personal injury did not refer to
Indian cases, but to British precedent. In essence, this is
Karim’s argument in the alternative — i.e., that if we find that
quantum was appropriately determinable under Bangladeshi law and
31
not excessively low, Karim argues that the amount is not
excessively high.
Based on the information in the record and in the district
court’s thorough opinion, we conclude that the court did not err
in setting the amount of general damages under Bangladeshi law to
be U.S. $160,000.21 See Karim I, 94 F. Supp. 2d at 740-43.
E. Application of the Merchant Shipping Ordinance
The district court found that the MSO (the codified general
maritime law of Bangladesh) did not apply to Karim’s service
aboard the vessel because MSO § 1(4) states that the MSO only
applies to (1) Bangladeshi ships, (2) ships registered under the
MSO, (3) ships licensed under the MSO in coasting trade while
engaged in such trade, and (4) all other ships while in port or
within the territorial waters of Bangladesh.22 See Karim I, 94 F.
Supp. 2d at 744. Thus, because it had determined that the MSO
was inapplicable in this case, the district court held that the
21
We note that Finch’s so-called numerical comparisons as
to the value of the award in Bangladesh are not persuasive. Such
homemade statistics are suspect.
22
Section 1(4) of the MSO reads more completely as
follows:
(a) all Bangladesh ships wherever they may be, except
inland ships as defined by the Inland Shipping
Ordinance, 1976 (LXXII of 1976); (b) all ships deemed
to be registered under this Ordinance wherever they may
be; (c) all ships, not being Bangladesh ships, licensed
under this Ordinance in coasting trade, while engaged
in such trade; and (d) all other ships while in a port
or place in, or within the territorial waters of
Bangladesh.
32
MSO requirements, such as the penalty wage provision, were also
inapplicable. See id.Disagreeing with the district court, Karim argues that the
MSO does apply because of the clear language in the Shipping
Articles (his contract with Finch), which stated that the
Articles were “made pursuant to” the MSO. Karim also points to
the testimony of Finch’s expert in which the expert stated: “The
provisions of the Shipping Articles are governed by [the] MSO.”
Finally, Karim asserts that several provisions of the Shipping
Articles specifically refer to various MSO provisions.
As the district court correctly stated, the vessel in this
case does not fit into any one of the four categories of MSO
§ 1(4). The Shipping Articles do state that they were “made
pursuant to” the MSO. The plain reading of the terms “made
pursuant to” indicates that the more reasonable interpretation is
the one for which Finch argues — i.e., that the Shipping Articles
fulfill the required elements of the MSO (and not that the
Shipping Articles mandate that all the MSO requirements be
applicable to the seaman). This interpretation also does not
create conflict with § 1(4).
Therefore, the district court did not err in determining
that the MSO is inapplicable in this case.
F. The United States Penalty Wage Statute
Factual determinations regarding the penalty wage statute
are “subject to the clearly erroneous standard of review.”
33
Castillo v. Spiliada Mar. Corp., 937 F.2d 240, 243 (5th Cir.
1991).
“The Seamen’s Wage Act, 46 U.S.C. § 10313, protects
seafarers by ensuring they receive timely payment of wages.”
Mateo v. M/S KISO, 41 F.3d 1283, 1289 (9th Cir. 1994) (internal
quotations and citations omitted). The statute explicitly
applies to foreign seamen in United States ports. See 46 U.S.C.
§ 10313(i) (2001). As such, their wages are necessarily
determined by the foreign law under which they were paid (in this
case, Bangladeshi law). Cf. Mateo, 41 F.3d at 1290 (stating that
“defendants acted in good faith by abiding with the dictates of
Philippine law and long-standing custom in paying off the seamen
after they had returned to the Philippines”).
On June 23, 1999, the district court orally granted Finch
summary judgment on Karim’s claim regarding the United States
penalty wage statute. Denying Karim’s request for
reconsideration of this ruling, the district court reiterated its
statement from the initial hearing that Karim’s “assertions of
disputed facts [as to owed wages] . . . , unsupported by
competent evidence, are not sufficient to survive a motion for
summary judgment.” Karim v. Finch Shipping Co., No.
CIVA954169REF, available at 1999 WL 605481, at *1 (E.D. La. Aug.
11, 1999). The court also stated that the newly proffered
affidavit for reconsideration would be disregarded because it was
untimely (given that Karim had over three years to adduce
34
evidence on this issue). See id. The district court further
stated that “Karim was unable to offer any credible factual
dispute to Finch’s contention that all wages for work he had
actually performed were paid upon his discharge.” Id.We find no fault with the district court’s disposition of
Karim’s claim in this regard. We also note that Karim’s argument
on appeal that his right to wages has been established by the MSO
and the Shipping Articles is unavailing: we have upheld the
district court’s determination that the MSO is inapplicable, see
supra Part III.E, and we also agree with the district court’s
determination that Karim was not owed wages under the Shipping
Articles, see Karim I, 94 F. Supp. 2d at 744 n.10. Thus, there
is no debt for wages under Bangladeshi law upon which Karim could
base a claim for penalty wages. Therefore, the district court
did not err in granting summary judgment on Karim’s claim under
the United States penalty wage statute in favor of Finch.
G. Maintenance Under the Employment Contract, the Merchant
Shipping Ordinance, or the United States General Maritime Law
Karim claims that his contract with Finch, i.e., the
Shipping Articles, provide that, if he is injured, Finch would
pay his maintenance expenses until his return to Bangladesh. He
also states that the MSO and United States general maritime law
impose similar requirements. In fact, under United States law, a
shipowner is required to pay the maintenance expenses of an
injured seaman until he reaches maximum medical improvement.
35
Karim asserts that he provided undisputed testimony that he
incurred such expenses in the amount of $34,900.
The district court did not explicitly address this claim,
likely because Karim did not prove the amount of maintenance to
which he was entitled. Although Karim refers to his maintenance
expenses in some portions of his testimony at the bench trial, we
have been unable to locate the $34,900 figure in the record. As
such, this claim is not properly before us.23
H. Prejudgment Interest
The district court noted first that the limitation action
was stayed at Karim’s request so that he could pursue his claims
in state court. See Karim I, 94 F. Supp. 2d at 745. The court
then held that prejudgment interest should commence from the date
the limitation action was reactivated in the federal court. See
id.Karim disputes this determination, stating that interest
should have been awarded from the date of his injury. Karim
maintains that the district court based its decision on the
erroneous premise that the renewal of his state court action
operated as a stay of the limitation proceeding. Karim argues
23
We also note that the district court’s determinations
implicitly precluded a recovery for maintenance expenses. As the
MSO has been found inapplicable to Karim’s situation, see supra
Part III.E, maintenance based on the MSO was not possible.
Basing maintenance on the United States general maritime law is
also not tenable because the district court had determined that
the choice-of-law analysis pointed to Bangladeshi law.
36
that the district court’s order permitting Karim to pursue state
court litigation did not prohibit Finch from proceeding with its
limitation action.
As the district court correctly stated, the award of
prejudgment interest is discretionary (both under Bangladeshi and
United States law). See id. Under this standard, we find that
the district court did not abuse its discretion in setting the
initial date of the interest accrual to be the date this
limitation action was reactivated in federal court.
I. Litigation Costs, Including Attorneys’ Fees
The district court stated that, under Bangladeshi law,
litigation costs, including attorneys’ fees, are discretionary
and depend in large part on the counsel’s effort and the outcome
of the litigation. The court also noted that contingency fees
are disfavored in Bangladesh, and attorneys’ fees are to be based
upon the work of the attorney. As such, the district court
concluded that Karim should be awarded litigation costs,
including attorneys’ fees, in the amount of $70,000.
Karim complains that the district court provided no analysis
and summarily determined the amount of the award. Karim asserts
that this court has previously remanded and required a district
court to prove its reasons in awarding attorneys’ fees. Karim
fails to mention that the cases it cites concerned fees awarded
under United States law. Karim goes on to state that the
unilateral award was in direct contravention of the understanding
37
between the parties and the court (i.e., that should the court
determine that Karim was entitled to attorneys’ fees and costs,
the amount would be determined by referral to a magistrate
judge). Such a referral is also in line with Bangladeshi law,
which provides trial courts with the discretion to refer fee
determinations to magistrates. Karim points out that the record
demonstrates that attorneys’ fees alone in this case are over
$200,000 and that the costs are substantial. Karim argues that
the amount received is so low as to constitute an abuse of
discretion.
Finally, Karim argues that he is entitled to costs pursuant
to Rule 54(d)(1) and 28 U.S.C. § 1920, regardless of the fact
that foreign law governed the underlying claims. He points out
that the district court’s decision is ambiguous regarding whether
the amount awarded included Rule 54(d)(1) and § 1920 costs. At a
minimum, he requests that this court enter an order clarifying
that he is entitled to file a motion to recover costs under Rule
54(d)(1) and § 1920.
Although there may have been an “understanding” that a fees
and costs determination would be referred to a magistrate judge,
a district court is not required to make such a referral. While
such an action may assist in assessing the amount to be awarded,
a district court may rely on the record before it. Therefore, an
alleged contravention of this “understanding” is not per se
error. In addition, the district court set out the factors
38
guiding its discretion as to the award of attorneys’ fees and
litigation costs.
The short answer to Karim’s claim regarding his entitlement
to costs recoverable under Rule 54(d)(1) and § 1920 is that Karim
never filed a bill of costs in the district court or in any way
raised his entitlement to those costs in the district court.
IV. CONCLUSION
For the foregoing reasons, we AFFIRM the judgment of the
district court. Each party shall bear its own costs.
39