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A new case from the Hawaii Supreme Court recognizes personal injury claims for a viable fetus. This new approach seems consistent with a judicial approach to unborn children that life begins at viability. Castro v. Melchor, SCWC-12-0000753 (March 13, 2018).
JONES ACT - TABLE OF CONTENTS
The Jones Act
VII. PRACTICE AND PROCEDURE C. Venue 3. Forum Non Conveniens
While underlying principles of forum non conveniens doctrine are well established, each case must be decided on its peculiar factual setting and District Court's determination that defendant shipowner has substantial base of operations in United States is factual finding that should not be disturbed on review unless clearly erroneous. Szumlicz v Norwegian America Line, Inc. (1983, CA11 Fla) 698 F2d 1192.
Because forum non conveniens was defense solely available to foreign defendant in federal forum, and because they did not waive that defense by untimely assertion, District Court erred in permitting plaintiff to voluntarily dismiss federal claim without prejudice to bringing action in state that does not recognize that defense; this was so despite fact that state's position was clearly in conflict with federal law, because court will not make defendants guinea pigs in effort to overturn state law. Ikospentakis v Thalassic S.S. Agency (1990, CA5 La) 915 F2d 176.
Doctrine of forum non conveniens is inapplicable to Jones Act, which contains special provision mandating venue in United States courts. Creative Technology v Aztech Sys. PTE (1995, CA9 Cal) 61 F3d 696, 95 CDOS 5751, 95 Daily Journal DAR 9814, 35 USPQ2d 1590.
State rules on forum non conveniens govern in actions under 46 USCS Appx § 688. Norfolk & W. R. Co. v Beatty (1975, SD Ill) 400 F Supp 234, affd 423 US 1009, 46 L Ed 2d 381, 96 S Ct 439.
Doctrine of forum non conveniens raises issue of choice of law, thus, whether court maintains jurisdiction or dismisses case depends upon substantiality of contacts between injury and United States. Iriah v J. Ray McDermott & Co. (1979, DC Tex) 1979 AMC 1219.
Jones Act does not preclude dismissal of case under doctrine of forum non conveniens. Sherrill v Brinkerhoff Maritime Drilling (1985, ND Cal) 615 F Supp 1021.
548. Applicability of doctrine where Jones Act applies
Federal law does not pre-empt state law regarding doctrine of forum non conveniens in admiralty cases filed in state court under Jones Act (46 USCS Appx § 688), which authorizes seaman who suffers personal injury in course of employment to bring action for damages at law, and clause of 28 USCS § 1333(1) which provides for exclusive federal jurisdiction over admiralty cases while "saving to suitors" all other remedies to which they are otherwise entitled. American Dredging Co. v Miller (1994, US) 127 L Ed 2d 285, 114 S Ct 981, 94 CDOS 1288, 93 Daily Journal DAR 2371, 1994 AMC 913, 7 FLW Fed S 754.
District Court has no power to dismiss on grounds of forum non conveniens where 46 USCS Appx § 688 is applicable. Antypas v Cia. Maritima San Basilio, S. A. (1976, CA2 NY) 541 F2d 307, cert den 429 US 1098, 51 L Ed 2d 545, 97 S Ct 1116 and (disagreed with De Mateos v Texaco, Inc. (CA3 Pa) 562 F2d 895, cert den 435 US 904, 55 L Ed 2d 494, 98 S Ct 1449) and (disagreed with Chiazor v Transworld Drilling Co. (CA5 La) 648 F2d 1015, reh den (CA5 La) 659 F2d 1075 and cert den 455 US 1019, 72 L Ed 2d 136, 102 S Ct 1714) as stated in Vaz Borralho v Keydril Co. (CA5 Tex) 696 F2d 379, reh den (CA5 Tex) 710 F2d 207 and (disagreed with Tallentire v Offshore Logistics, Inc. (CA5 La) 754 F2d 1274, revd on other grounds (US) 91 L Ed 2d 174, 106 S Ct 2485) and (disagreed with Cruz v Maritime Co. of Philippines (CA2 NY) 702 F2d 47 (disagreed with Pereira v Utah Transport, Inc. (CA9 Cal) 764 F2d 686, cert dismd (US) 89 L Ed 2d 362, 106 S Ct 1253)).
Jones Act (46 USCS Appx § 688) does not prohibit District Court from dismissing case on ground of forum non conveniens; District Court no longer need first determine whether Jones Act applies before resolving forum non conveniens motion. Cruz v Maritime Co. of Philippines (1983, CA2 NY) 702 F2d 47 (disagreed with Pereira v Utah Transport, Inc. (CA9 Cal) 764 F2d 686, cert dismd (US) 89 L Ed 2d 362, 106 S Ct 1253).
If Jones Act applies to seamen's claim, dismissal for forum non conveniens is precluded. Zipfel v Halliburton Co. (1987, CA9 Cal) 820 F2d 1438.
When Jones Act applies to seaman's claim, claim may not be dismissed on ground of forum non conveniens. Zipfel v Halliburton Co. (1987, CA9 Cal) 832 F2d 1477.
Court has no power to dismiss case on grounds of forum non conveniens action where Jones Act (46 USCS Appx § 688) is otherwise found applicable, no matter how inconvenient forum may be to parties or to witnesses. Pavlou v Ocean Traders Marine Corp. (1962, SD NY) 211 F Supp 320.
549. Discretion of court
Dismissal of Jones Act suit does not rest in discretion of trial judge, since facts of case either warrant application of Act or they do not; once Act is found applicable, court's power to adjudicate must be exercised. Bartholomew v Universe Tankships, Inc. (1959, CA2 NY) 263 F2d 437, 1 FR Serv 2d 621, cert den 359 US 1000, 3 L Ed 2d 1030, 79 S Ct 1138 and (disagreed with on other grounds De Mateos v Texaco, Inc. (CA3 Pa) 562 F2d 895, cert den 435 US 904, 55 L Ed 2d 494, 98 S Ct 1449) and (disagreed with on other grounds Chiazor v Transworld Drilling Co. (CA5 La) 648 F2d 1015, reh den (CA5 La) 659 F2d 1075 and cert den 455 US 1019, 72 L Ed 2d 136, 102 S Ct 1714) as stated in Vaz Borralho v Keydril Co. (CA5 Tex) 696 F2d 379, reh den (CA5 Tex) 710 F2d 207 and (disagreed with Tallentire v Offshore Logistics, Inc. (CA5 La) 754 F2d 1274, revd on other grounds (US) 91 L Ed 2d 174, 106 S Ct 2485).
When court determines that foreign law applies to case, it should consider various private and public interest involved before dismissing case for forum non conveniens; this determination is committed to sound discretion of trial court and on appeal, court may reverse District Court's decision on motion to dismiss for forum non conveniens only if its action constitutes clear abuse of discretion. Diaz v Humboldt (1984, CA5 La) 722 F2d 1216.
District Court abused its discretion by deciding forum non conveniens motions in 3 consolidated personal injury admiralty suits without first making choice of law determination. McClelland Engineers, Inc. v Munusamy (1986, CA5 Tex) 784 F2d 1313.
District Court has no discretion under doctrine of forum non conveniens to dismiss or transfer 46 USCS § Appx 688 claim where American contacts are sufficient to warrant application of American law. Mattes v National Hellenic American Line, S. A. (1977, SD NY) 427 F Supp 619.
In action where plaintiff asserts that 46 USCS Appx § 688 and general maritime law of United States governs case, and where defendant asserts that law of foreign nation apply, if § 688 and general maritime law of United States apply, then court is without power to dismiss on grounds of forum non conveniens but if on other hand, foreign nation law applies, then court is required to exercise its discretion to determine whether or not matter should be dismissed and parties directed to litigate in different forum. Cruz v Maritime Co. of Philippines (1982, SD NY) 549 F Supp 285, affd (CA2 NY) 702 F2d 47 (disagreed with Pereira v Utah Transport, Inc. (CA9 Cal) 764 F2d 686, cert dismd (US) 89 L Ed 2d 362, 106 S Ct 1253).
550. Availability of evidence and witnesses
Dismissal of suit on forum non conveniens considerations is proper where facts of case clearly dictate that private and public interests, including congested calendars of courts, are best served by permitting case to be litigated in Greece where all sources of proof are available, and where Greek courts would have, and would accept, jurisdiction over claim. Frangiskatos v Konkar Maritime Enterprises, S. A. (1972, CA2 NY) 471 F2d 714.
In action under Jones Act (46 USCS Appx § 688) by widow of Greek decedent who died while employed as second mate on Greek flag vessel owned by Panamanian corporation, Greece is more convenient forum for litigation of action since (1) most, if not all, sources of documentary proof, including ship's log, medical, autopsy and decedent's personal records are located in Greece, (2) accident occurred while vessel was bound for or in vicinity of Sardinia, Italy, (3) many of potential witnesses to accident are Greek nationals, and other material witnesses, such as examining physicians, most likely are either in Greece or Sardinia, and (4) since plaintiff is Greek citizen, trial in Greece would substantially reduce expenses of hiring interpreters and transporting documents or witnesses. Doufexis v Nagos S.S., Inc. (1983, SD NY) 583 F Supp 1132.
Jones Act suit by Greek seaman will not be dismissed on grounds of forum non conveniens notwithstanding that defense witnesses to accident are Greek, where witnesses are seamen under defendants' control, who stop in United States ports at least as frequently as in Greek ones, and plaintiff's witnesses are Americans not subject to process in Greece; fact that time and money will have to be expended to translate testimony and documents from Greek is not sufficient hardship to justify dismissal; although Greece has interest in adjudicating case involving Greek litigants aboard Greek ship, United States also has strong interest in according equal treatment under Jones Act to foreign and domestic shippers who compete in American market. Karvelis v Constellation Lines SA (1985, SD NY) 608 F Supp 966.
Jones Act (46 USCS Appx § 688) case will be dismissed from Louisiana to Greece unless vessel owner refuses promptly to submit to jurisdiction there, to guarantee satisfaction of judgment rendered against it, and to waive any limitations defense in Greece, where Peruvian seaman seeks remedy for hand injury suffered aboard Greek flag vessel on call to New Orleans, because Greek forum is available, adequate and most convenient since more primary witnesses reside there, vessel maintenance records as well as seaman's wage accounts are stored there, and Greek law should apply. Vargas v M/V Mini Lama (1989, ED La) 709 F Supp 117.
Venue of employee's action under 46 USCS Appx § 688 for alleged injury in Louisiana would not be transferred from Texas District to Louisiana District, where only one of 7 potential witnesses cited by employer lived in Louisiana, 2 of employee's key witnesses resided in Texas District, employer made inconsistent representations about its citizenship, residents of Texas District had interest in outcome of litigation and safety of employer's operations, and although worker did not live in Texas district it did not appear he was engaged in blatant forum shopping. Carona v Falcon Servs. Co. (1999, SD Tex) 68 F Supp 2d 783.
Plaintiff seamen cannot, without compelling reason, be ousted of their admitted right to bring actions under 46 USCS Appx § 688 in state court or in federal court where defendant can be effectively brought within court's jurisdiction; defendant's motion for dismissal on basis of forum non conveniens will not be allowed where defendant's claimed reason was convenience of witnesses and some of defendant's witnesses reside in states other than original court or court to which defendant wishes action transferred. Walker v Ohio River Co. (1964) 416 Pa 149, 205 A2d 43.
551. American contacts; place of injury
Jones Act (46 USCS Appx § 688) is inapplicable to suit by British West Indian seaman for injuries sustained in American waters while working aboard Liberian ship. Bartholomew v Universe Tankships, Inc. (1959, CA2 NY) 263 F2d 437, 1 FR Serv 2d 621, cert den 359 US 1000, 3 L Ed 2d 1030, 79 S Ct 1138 and (disagreed with on other grounds De Mateos v Texaco, Inc. (CA3 Pa) 562 F2d 895, cert den 435 US 904, 55 L Ed 2d 494, 98 S Ct 1449) and (disagreed with on other grounds Chiazor v Transworld Drilling Co. (CA5 La) 648 F2d 1015, reh den (CA5 La) 659 F2d 1075 and cert den 455 US 1019, 72 L Ed 2d 136, 102 S Ct 1714) as stated in Vaz Borralho v Keydril Co. (CA5 Tex) 696 F2d 379, reh den (CA5 Tex) 710 F2d 207 and (disagreed with Tallentire v Offshore Logistics, Inc. (CA5 La) 754 F2d 1274, revd on other grounds (US) 91 L Ed 2d 174, 106 S Ct 2485).
Forum non conveniens considerations lead to dismissal of suit by widow of Greek seaman who was killed in California aboard Greek registered and Panamanian owned vessel; federal courts should not exercise admiralty jurisdiction in suits between aliens, because of difficulty of subpoenaing proof and enforcing judgment. Leonad v General Carriers, S.A. (1974, DC Cal) 1974 AMC 471.
552. --Direct or indirect ownership
United States law was not applicable to action brought by representative of deceased seaman, notwithstanding that vessel was owned by Panamanian corporation which was wholly owned subsidiary of United States corporation, where (1) injury occurred either on high seas or in port of Honduras or Costa Rica, (2) seaman was Panamanian citizen who executed employment contract in Panama, (3) there was no evidence that Panamanian corporation was "facade" to enable United States corporation to avoid its obligations under United States maritime law, and (4) plaintiff who was also citizen and resident of Panama, had already sued in Panama on same claim and had had that claim fully adjudicated; action would be dismissed on basis of forum non conveniens. De Mateos v Texaco Panama, Inc. (1977 CA3 Pa) 562 F2d 895, cert den 435 US 904, 55 L Ed 2d 494, 98 S Ct 1449.
46 USCS Appx § 688 action was dismissed on ground of forum nonconveniens where citizen of Greece jumped to his death from ship into Hudson River; deceased's widow was citizen and resident of Greece, owner of vessel was corporation organized and existing under laws of Liberia and said corporation was neither owned nor controlled by United States citizens, none of stock of owner of vessel was owned by United States citizen, vessel was engaged in carrying passengers and was registered under laws of Greece, decedent joined crew of vessel and agreed that any claim arising out of his employment would be settled according to Greek law, and vessel was departing from New York Harbor to Greece when decedent committed suicide. Xerakis v Greek Line, Inc. (1974, ED Pa) 382 F Supp 774.
Actions under Jones Act (46 USCS Appx § 688) and Death on High Seas Act (46 USCS Appx § 761) brought by foreign plaintiffs and arising from death and injury aboard vessel owned or controlled by United States defendants or their foreign surrogates will not be dismissed on grounds of forum non conveniens, where plaintiffs chose forum with most advantageous law available to them and not for purpose of harassing defendants, and where public interest does not require dismissal. Munusamy v McClelland Engineers, Inc. (1984, ED Tex) 579 F Supp 149, later proceeding (ED Tex) 590 F Supp 891 and mand den, vacated on other grounds (CA5) 742 F2d 837, cert den (US) 84 L Ed 2d 366, 105 S Ct 1228, later proceeding (CA5 Tex) 784 F2d 1313.
553. --Business contacts
Jones Act (46 USCS Appx § 688) is applicable to suit by Portuguese seaman who was injured in Great Britain aboard Panamanian registered and Dutch owned vessel, although many of witnesses and documents regarding accident were in England where related action was pending where representatives of shipping companies were available in American forum. Castanho v Jackson Marine, Inc. (1980, ED Tex) 484 F Supp 201, affd in part and app dismd in part on other grounds (CA5 Tex) 650 F2d 546, reh den (CA5 Tex) 656 F2d 700 and reh den (CA5 Tex) 656 F2d 700.
Action brought under Jones Act (46 USCS Appx § 688) seeking to recover damages for alleged wrongful death of two Greek seamen will be dismissed on grounds of forum non conveniens, since (1) alleged wrongful deaths occurred while vessel was in Soviet waters, (2) vessel is owned by Liberian corporation and is of Greek registry, (3) duties of owner's United States agent were narrow and (4) owner has agreed to appear and defend any wrongful death action plaintiffs might bring in Greece. Kassapas v Arkon Shipping Agency, Inc. (1984, SD NY) 578 F Supp 400.
554. --All contacts foreign
In exercise of sound discretion, district court may decline jurisdiction of suit in admiralty brought by foreign seaman against foreign ship; but before acting, district court should be fully informed about all factors that have significant bearing on question of retaining jurisdiction, including allegiance of shipowner. Lekkas v Liberian M/V Caledonia (1971, CA4 Va) 443 F2d 10.
Forum non conveniens considerations justify refusal to apply Jones Act (46 USCS Appx § 688) to suit brought for damages resulting from death of Greek seaman who died at sea aboard foreign vessel, despite existence of American contacts, since Greek law is law of flag, decedent was resident and citizen of Greece, and defendant's base of operations is in Panama. Morewitz v Andros Compania Maritima, S. A. (1980, CA4 Va) 614 F2d 379.
Although available, Greek forum is inconvenient, and Jones Act (46 USCS Appx § 688), rather than Greek law, is applicable to Greek seaman's suit for injuries sustained on high seas aboard Panamanian ship. Ventiadis v C. J. Thibodeaux & Co. (1968, SD Tex) 295 F Supp 135.
JONES ACT - TABLE OF CONTENTS