Bulkley, Dunton Paper Co. v. the Rio Salado, 67 F. Supp. 115 (S.D.N.Y. 1946)

*116 Horace T. Atkins, of New York City (William Weymar, Jr., of New York City, of counsel), for libelant.

Kirlin, Campbell, Hickox & Keating, of New York City (Michael F. Whalen, of New York City, of counsel), for respondent.

CAFFEY, District Judge.

The litigants are nationals of the Argentine Republic. In consequence, this court is empowered to decline to take or retain jurisdiction. Charter Shipping Co. v. Bowring, etc., 281 U.S. 515, 517, 518, 50 S. Ct. 400, 74 L. Ed. 1008; Canada Malting Co. v. Paterson Co., 285 U.S. 413, 418-421, 52 S. Ct. 413, 76 L. Ed. 837.

The moving affidavit states that the witnesses are available in the Argentine and their testimony can more easily be obtained there. In addition, the calendar of this court is crowded. Accordingly, I feel that, in the exercise of my discretion, the court should not accept jurisdiction.

It has been suggested that the delay in instituting suit in the Argentine might enable the respondent to interpose the statute of limitations. However, this will not cause difficulty in the present action because counsel for the respondent in open court has stipulated that the defense of limitation will not be pleaded.

Accordingly, the motion to refuse jurisdiction and to dismiss the libel is granted. Settle order on two days' notice.