FINDINGS OF FACT AND CONCLUSIONS OF LAW
Introduction
This cause came on to be heard with the filing of Petitioners’ Motion for Partial Summary Judgment pursuant to Rule 56 and Motion to Dismiss pursuant to Rule 12 of the Federal Rules of Civil Procedure. Respondent filed a Motion to Dismiss and Cross-Motion for Summary Judgment pursuant to Fed.R.Civ.P., Rules 12 and 56. This action was filed on December 31,1981, by Petitioners Geophysical Service, Inc. (hereinafter “GSI”) and Texas Instruments, Inc. (hereinafter “TI”) for exoneration from or limitation of liability pursuant to the American Limitation of Liability Act, 46 U.S.C. § 181 et seq. (hereinafter “Limitation Act”) and the Canadian Limitation of Liability Statute and the Canadian Shipping Act § 647 et seq. (hereinafter “Limitation Statute”). Petitioners filed this action to consolidate the various suits filed against them arising out of the sinking of the Canadian-flagged vessel, M/V ARCTIC EXPLORER (hereinafter ARCTIC EXPLORER), and seek the dismissal of the consolidated claims on the basis of forum non conveniens.
On January 21, 1983, the above-entitled and numbered cause was called for a hearing before this Court to consider the Petitioners’ and Claimants’ outstanding motions. Based upon a review of the record and the applicable law, this Court renders judgment for the Petitioners and enters the following Findings of Fact and Conclusions of Law pursuant to Rule 52 of the Federal Rules of Civil Procedure.
Findings of Fact
1. GSI is a subsidiary of TI both of which are incorporated under the laws of *1349 Delaware, having their principal place of business in Dallas, Texas. Although GSI’s domestic headquarters is located in Dallas, Texas, the company engages in geophysical survey work throughout the world. In Canada, GSI has offices in Calgary, Alberta; Dartmouth, Nova Scotia; and St. John, Newfoundland. Carino Company, Ltd., the owner of the ARCTIC EXPLORER, but not a party to this litigation, is incorporated under the laws of the Province of Nova Scotia, Canada, having its principal place of business in St. John, Newfoundland, Cаnada.
2. Prior to her sinking, the ARCTIC EXPLORER was an oceanographic research vessel of Canadian registry, Official No. 345866, built in 1974 in Kristiansand, Norway, and home ported in St. John, Newfoundland, Canada.
3. In late 1974, GSI negotiated with Carino in Norway for the charter of the ARCTIC EXPLORER. In early 1975, Carino chartered the ARCTIC EXPLORER to GSI pursuant to a time charter agreement for the exclusive purpose of conducting marine oceanographic geophysical surveys. The Time Charter Agreement between Carino and GSI was amended on September 9, 1980. The vessel remained under charter to GSI from 1975 until the sinking of the vessel, except for periods of time when it was returned to Carino for seal hunting.
4. Pursuant to the terms of the time charter agreement, Carino provided a minimum crew complement of six seamen, consisting of a captain, mate, chief engineer, second engineer and two able-bodied seamen. (Time Charter of M/V ARCTIC EXPLORER, Clause 1.2). In addition to being responsible for crewing the vessel, Carino also maintained and operated the vessel, warranting her seaworthiness and maintaining her classification.
5. Based upon a review of the daily activity reports from the geophysical crew, William Blakeley, Manager of Marine Operations stated and the defendants do not dispute, that with the exception of three short port calls in 1979 for the purpose of taking on fuel and supplies, the ARCTIC EXPLORER has not been in the United States. Moreover, the vessel’s annual surveys, required inspections and routine in-port repairs were performed in a Newfoundland, Canada.
6. On July 3, 1981, under the command of Captain William Jack King the ARCTIC EXPLORER, while en route to the coast of Labrador from the port of St. Anthony, Newfoundland, sank and becamе lost within Canadian territorial waters at a location approximately five miles off the coast of Newfoundland.
7. At approximately 7:30 a.m. on the morning of July 3, the ARCTIC EXPLORER began to list to starboard about ten degrees. Very shortly thereafter, the list increased to approximately thirty degrees, followed by an increase to forty degrees to starboard. Weather conditions at this time were estimated to be in the range of Beaufort scale six; a strong westerly breeze blew at an estimated force of twenty-two to twenty-seven knots, the skies were clear, visibility was good and the seas were choppy. The vessel continued listing to starboard and, within thirty minutes, for unknown reasons, the vessel sank.
8. On board the vessel at the time of the sinking were Captain King and seven members of his crew, all of whom were Canadian citizens, and specifically, residents of the Province of Newfoundland. The ARCTIC EXPLORER also carried an additional crew of twenty-four men, whose sole function was to perform oceanographic geophysical survey work. There is no indication in the record, nor was there any evidence produced at the hearing, which would establish that the scientific personnel played any role in the vessel’s operations. As a result of the accident, thirteen of the thirty-two individuals aboard the vessel, lost, their lives. Of those thirteen, one was American, two were Australians and ten were Canadians. The Canadian Coast Guard rescued the remainder of the ship’s personnel from their lifeboat approx *1350 imately fifty-one hours after the vessel was lost.
9. The personnel on board the ARCTIC EXPLORER were employed as follows:
GSI Carino
1. Cyril Aylward 1. Clarence Ash
2. Malcolm Bailee 2. Gerald Butler
3. Scott Brennan 3. Mansfield Butt
4. James Catley 4. Brian Hargreaves
5. Gary Connolly 5. Francis King
6. Jeff Cunkelman 6. Jack King
7. Kenneth Erskine 7. Frank Philpott
8. William Evans 8. Roy Weir
9. Barry Gilbert
10. John Hobert Ocean Nav Limited
11. Derek Jeans
12. Roger Locke 1. John Pumphrey
13. William Maclnnis 2. Charles Randell
14. Kevin McLean 3. John Ratter
15. Allan Mathewson
16. Terry Piercey 17. Derick Sheppard British Petroleum
18. Gerald Strachan 1. Chris Martin
Tideland Geophysical Co. 2. Wallace Way
1. Kelly McCamy
All of the deck and engineering crew members on board the vessel, including the master, were employed directly by Carino. All of the scientific personnel aboard were employed by GSI. The remaining personnel were employed by Ocean Navigation, Ltd. [“ONL”], a Canadian electronic surveying company which provided technical services and equipment to GSI, British Petroleum, the client for whom GSI was performing geophysical and geological survey work, and Tidelands Geophysical Company [“Tidelands”], which also provided equipment to GSI.
10. Canadian authorities, including the Canadian Coast Guard, the Royal Canadian Mounted Police and the Canadian Ministry of Transport, undertook separate and extensive investigations of the sinking. A formal investigation convened in St. John, Newfoundland, Canada on April 27, 1982. It continued for several months during which time the authorities obtained testimony from fifty-five witnesses and accumulated a great deal of evidence. The Canadian Ministry of Transport recently issued a final, lengthy report concerning its investigation. Thus, the Canadian government has exhibited a very strong interest in this controversy.
11. Shortly after the vessel’s sinking, survivors of those who lost their lives commenced litigation in several different state and federal courts in Texas, naming as Defendants GSI and TI. The American attorneys for the Plaintiffs in those actions successfully defeated efforts by GSI and TI to consolidate those suits by removing the state court actions to federal court.
12. On September 14, 1981, the petitioner, GSI, the time charterer, and Carino filed an action in the Federal Court of Canada, for limitation of liability pursuant to the Canadian Limitation Statute against all persons having claims against the petitioner. Pursuant to the Canadian Shipping Act, the Federal Court of Canada limited petitioners’ liability and ordered petitioner to pay into that court’s registry in Canadian dollars, plus interest to the date of deposit.
13. Facing the prospect of litigating twenty different lawsuits in various federal *1351 and state courts of Texas, GSI and TI filed their Limitation of Liability petition in this Court on December 31, 1981. This petition satisfies the six-month procedural deadline for the filing of a limitation of liability petition. In that pleading GSI and TI petitioned this Court to invoke a concursus bringing all claims against them arising from the sinking into one forum to be disposed of in one action. The Petitioners invoked limitation under Canadian law and/or under the laws of the United States.
14. Pleading in the alternative, Petitioners sought several different forms of relief in their limitation of liability complaint. Stating their contention that Canadian substantive law must govern this controversy, the Petitioners seek dismissal of all claims filed against thеm in the limitation proceeding so that they might be dealt with in a more convenient forum in Canada. Alternatively, Petitioners asked this Court to maintain this limitation action and to apply Canadian law to the entire controversy, determining their liability, if any, and allow them to limit any such liability they might be deemed to owe to the Claimants herein. Further, Petitioners also asserted that if this Court should determine that the Canadian Limitation of Liability statute is not applicable to this limitation action, then they assert their right to exoneration from a limitation of liability pursuant to United States Limitation of Liability statute, 46 U.S.C. § 181 et seq.
15. On January 12, 1982, this Court approved the Petitioners ad interim stipulation executed on December 30, 1981 as surety for value in the amount of two hundred and seventy-five thousand dollars ($275,000) to stand as security for all claims in the limitation proceeding. The Court’s order also enjoined the “commencement or prosecution” of all federal and state court proceedings on this matter and issued a monition directing all parties to file their respective claims against the Petitioners in this limitation of liability proceeding with the Clerk of this Court. A copy of the notice of monition, and a copy of the monition together with a copy of the order of January 12 were mailed to all persons known to have made a claim or filed any actions against the Petitioners. Further, public notice of such monition was also published once a week for four consecutive weeks in the Houston Chronicle, Houston, Texas; Halifax Chronicle Herald, Halifax, Nova Scotia; and Evening Telegram, St. John, Newfoundland, Canada.
16. Pursuant to Admiralty Rule F(6) the following twenty claims for wrongful death and personal injury have been filed in this prоceeding:
1. Ash, Mrs. Clarence (Lois), Individually and as Personal Representative of the Estate of Clarence J. Ash, Deceased and as Next Friend for Their Minor Daughter, Annie;
2. Aylward, Pauline, Individually and as Administratrix of the Estate of Cyril Aylward;
3. Aylward, Vincent and Nellie, Individually and Jointly as Parents of the Deceased Cyril Aylward;
4. Baillie, Mr. and Mrs. William A. Individually and Jointly as Parents of the Deceased Malcolm Baillie;
5. Baillie, Deborah E., Individually and as Administratrix of the Estate of Malcolm Baillie, Deceased, and as Next Friend and Guardian of the Minor Children, Corey Baillie and Robert Baillie;
6. Butler, Anne, Individually and as Administratrix of the Estate of Gerald Cyril Butler, Deceased;
7. Catley, James;
8. Evans, William Albert;
9. Gilbert, Mr. and Mrs., Individually and as Administrators of the Estate of Barry Gilbert;
10. Hill, Edith, Individually and as Administratrix of the Estate of Kelly Wayne MeCamy, Deceased;
11. Jeans, Mr. and Mrs. Walter T., Individually, Jointly, and as Personal Representatives of the Estate of Derek Thomas Jeans, Deсeased;
12. King, Mrs. Florence;
13. King, Mr. and Mrs. Gaston, Individually and Jointly as Parents of the Deceased, Capt. William Jack King;
*1352 14. Philpott, Frank and Rose, Individually and as Personal Representatives of the Estate of Their Deceased Son Frank Patrick Philpott;
15. Piercey, Mr. and Mrs. Chelsey, Individually and as Administrators of the Estate of Terrance Piercey;
16. Pumphrey, John;
17. Randal, Charles;
18. Ratter, Hercules, Individually and as Administrator of the Estate of John Henry Ratter, Deceased;
19. Strachan, Susan, Individually and as Administratrix of the Estate of Gerald Douglas Strachan, Deceased, and as Next Friend and Guardian of Christopher and Amanda Strachan, Minor Children;
20. King, Lorraine, Individually and as Administratrix of Francis Joseph King, Deceased, and as Next Friend and Guardian of Peter and Susan King, Minor Children;
17. GSI employed Cyril Aylward, Malcolm W. Bailie, James R. Catley, William A. Evans, Derek T. Jeans, Terry N. Piercey and Gerald D. Strachan, Canadian nationals, all of whom applied fоr employment in Canada to work on the ARTIC EXPLORER in Canadian waters. See Blakely Exhibit No. 5. TI employed Barry Gilbert, an Australian national, who signed his employment application in Dallas, Texas. See Blakely Deposition, p. 58. Carino employed Clarence Ash, Gerald Butler, Francis King, Jack King, and Frank Philpott, also Canadian nationals, all of whom entered into employment in Canada and were residents of Newfoundland. See Blakely Deposition, p. 90. Kelly McCamy was the only American national injured in the accident who was employed by Tidelands. He entered into his employment contract in the United States where he was a resident.
18. On May 11, 1982, four months after initiation of the limitation action, Petitioner filed a Motion for Partial Summary Judgment that Canadian law governs this controversy and a Motion to Dismiss all of the above claims on the basis of forum non conveniens.
19. On May 14, the Claimants moved for an еxtension of time of 90 days in order to conduct discovery on the jurisdictional issues raised in the Petitioner’s motions, and an additional ninety days to conduct discovery. On July 14 the claimants’ Motion for Extension was granted and the claimants were given thirty days to file briefs.
20. On August 13 the Claimants filed a Cross-Motion for Summary Judgment asserting that the instant limitation action is governed by American law and that Petitioners, being merely the time charterers of the vessel, are not entitled to invoke limitation under American law.
21. After a status conference, the Court by letter on October 8, 1982 informed the parties that it would assume that Canadian limitation law applied to this proceeding and that it would take up the issues raised by the various motions in the following order: (1) whether a time charterer is entitled to invoke limitation under Canadian maritime law; (2) whether the right of a time charterer to invoke limitation is substantive or procedural in nature according to Canadian law; (3) whether the claims for personal injury and death filed in this action are susceptible of limitation; and (4) whether the claims should be dismissed on grounds of forum non conveniens.
22. The parties were invited to file additional briefs on these issues within a time schedule set by the Court. Petitioners timely filed another memorandum of law in response to the Court’s directive. More than two months after the date set by this Court for filing, claimants filed briefs relating to the motions previously filed, as well as another Motion to Dismiss the limitation action styled Claimants’ Amended, Supplemental and Additional Motion to Dismiss. In this new Motion to Dismiss, claimants contend that this Court lacked subject matter jurisdiction to hear this limitation action and/or that the limitation complaint should be dismissed for failure to state a claim upon which relief can bе granted. Claimants contend that the limitation proceeding should be dismissed because, among other *1353 reasons, the Petitioners filed the action in bad faith, since they did not actually seek limitation, but only a forum non conveniens dismissal of claims filed in the limitation action.
23. Due to claimants’ untimely filing of briefs responsive to this Court’s directives, Petitioners filed a Motion to Strike the late-filed briefs and an additional Motion to Dismiss. This Court denied Petitioners’ Motion to Strike and consolidated Claimants’ Amended, Supplemental and Additional Motion to Dismiss with the other Motions to Dismiss and Motions for Summary Judgment for a single hearing on January 21, 1983.
24. During a lengthy hearing which lasted an entire day, the Court heard oral argument from counsel concerning each of the pending motions. Both claimants and petitioners offered the testimony of distinguished Canadian legal experts who testified extensively concerning Canadian maritime law. The Court has considered that expert testimony, all of the other evidence, arguments of counsel, and the extensive briefs filed in this matter by both petitioners and claimants in making these Findings of Fact and Conclusions of Law.
25. Any of the above Findings of Fact deemed to be Conclusions of Law are hereby adopted as such.
Conclusions of Law
1. This is a maritime action wherein petitioners assert their statutory right, pursuant to the Limitation of Liability Act, ch. 43, 9 stat. 635 (1851) 46 U.S.C. § 181 et seq. as amended to limitation of liability on claims arising from the sinking of its vessel, ARTIC EXPLORER. The admiralty and maritime jurisdiction of this Court is properly invoked pursuant to 28 U.S.C. § 1333.
2. A limitation proceeding pursuant to the terms of the Act permits a vessel owner to limit its liability for damages or loss arising out of a particular voyage to the value of the vessel plus pending freight charges at the termination of the voyage.
See
e.g.
Black Diamond Steamship Corp. v. Robert Stewart & Sons, Ltd.,
(The
Nor-walk Victory)
3. Section 183 of the Limitation Act permits both Americаn and foreign shipowners facing multiple suits arising out of one voyage to bring the claimants into one proceeding to apportion the owners liability. Provided their lawsuits are subject to the orders of a district court, all damage claimants may be enjoined from maintaining separate suits and required instead to file their claims in the limitation proceeding.
Beal v. Waltz,
4. Claimants’ Amended, Supplemental and Additional Motion to Dismiss the Petitioners’ Limitation of Liability Complaint is a global attack based generally on Federal Rules of Civil Procedure 12(b)(1) through (6). The Court turns first to thе claimants contention that the above styled action should be dismissed for failure to state a claim pursuant to Rule 12(b)(6). Claimants argue the instant action should be dismissed because the petitioners allege that they are the time charterers of the vessel and the American Limitations Act prohibits a charterer from obtaining a limitation of liability.
Barracuda Tanker Corp. v. United Kingdom of Great Britain and Northern Ireland,
5. As the reasons for enаcting the limitation act have waned, the courts have adopted a restrictive interpretation of its scope.
In Re Barracuda Tanker Corporation,
6. Next, the Claimants argue that this Court has no power to act because the case at bar does not constitute a genuine “case or controversy.” In
KVUE v. Austin Broadcasting Corp.,
7. Claimants also argue that the Court lacks subject matter jurisdiction over the instant controversy because the face of the petitioners complaint does not allege a federal cause of action. The crux of the claimants argument is that the petitioners have asserted jurisdiction under the limitations act in such a contingent and conditional fashion, that it is not asserted at all. The Court disagrees and finds the complaint sufficient to establish federal jurisdiction.
Williamson v. Tucker,
8. The Court finds no merit in the Claimants’ contention that the Petitioners’ limitation complaint should be dismissed because Petitioners filed that Complaint in bad faith. Claimants argue that, since petitioners sought, as one alternative form of relief, dismissal of the claims on grounds of forum non conveniens Petitioners do not really seek limitation of liability.
9. The Petitioners do indeed seek in their limitation complaint to limit their liability in the event this Court elected not to dismiss the claims filed in the limitation action on grounds of
forum non conveniens. The AQUITANIA,
10. Furthermore, the Petitioners did not file their limitation complaint in bad faith. Assuming that Petitioners had the right to invoke the limitation action, an issue which is to be discussed subsequently, they are fully entitled to exercise that right in this Court. Petitioners invoked the limitation action as a defensive measure, in response to the many lawsuits filed against them in numerous federal and state courts in Texas.
See M/S BREMEN v. Zapata OffShore Co.,
11. Under general conflict of law principles, a forum will apply that body of substantive law which governs the rights and liabilities of the parties according to recognized choice of law principles. However, with respect to rules of procedure, the forum usually applies its own law.
See
Goodrich & Scoles,
Conflict of Laws
§ 80 (4th ed. 1964). “It is ... well settled that ‘where the rights of the parties are grounded upon the law of the jurisdiction other than the forum ... the forum will apply the foreign substantive law, but will follow its own rules of procedure.’
Bournias v. Atlantic Maritime Co., Ltd,.,
12. Claimants argue that limitation statutes are procedural rather than substantive in nature and therefore, the American Limitation Act should apply. Conversely, the Petitioners urge this Court to hold that the right of a time charterer to invoke a limitation proceeding is substantive, and therefore this controversy is governed by both the substantive and procedural sections of the Canadian limitations statute. The Claimants rely upon
Oceanic Steam Navigation Co. v. Mellor
(The
Titanic),
It is true that the act of Congress does not control or profess to control the conduct of a British ship on the high seas ____[and] that the foundation for a recovery upon a British tort is an obligation created by British law. But it also is true that the laws of the forum may decline altogether to enforce that obligation on the ground that it is contrary to the domestic policy, or may decline to enforce it except within such limits as it may impose. It is competent therefore for Congress to enact that in certain matters belonging to admiralty jurisdiction parties resorting to our courts shall recоver only to such extent or in such way as it may mark out.
Id.
at 732,
13. Reading the
Titanic,
however, in light of the Supreme Court’s ruling in
Black Diamond Steamship Corp. v. Robert Stewart & Sons
(The
Norwalk Victory )
14. The Norwalk Victory Court directed the district courts to conduct an inquiry initially to determine the procedural or substantive nature of the foreign limitation statute.
It is important to add, moreover, that the question of what law governs the substantive limit of liability should be determined in advance of the proof of individual claims. A proceeding to limit recovery, and the amount of the applicable limit, like the value of the vessel and freight, is a question affecting the magnitude of the rest from which recovery is sought. It is a question,, therefore, which lies at the threshold of all claims, is equally relevant to all, and should accordingly be disposed of before any. Id.336 U.S. at 397-398 ,69 S.Ct. at 628-629 .
Pursuant to the procedure outlined in the Norwalk Victory, a hearing was convened in the Court to establish and prove whether the right of a time charterer to invoke limitation is procedural or substantive in nature under the relevant Canadian law in accordance with Rule 44.1 Fed.R.Civ.P. In exploring the substаntive/procedural dichotomy, the Court considered the live testimony of three distinguished members of the Canadian bar versed in the area of admiralty law. Although the Canadian law experts differed on some of the points at issue, they were in complete agreement as to the absence of any direct controlling authority defining whether the Canadian Shipping Act is substantive or procedural.
15. The only authority discussing the procedural or substantive nature of the Canadian Shipping Act is Judge Kurpansky’s opinion in the
Matter of Bethlehem Steel Corp.,
16. After a hearing to determine whether the Canadian limitation statute was substantive or procedural, the district court concluded that “the limitation of liability provisions of the Canadian Shipping Act are procedural and do not attach to the rights created by the Act.” The Claimants argue that the holding in Bethlehem Steel stands for the proposition that the Canadian Shipping Act is procedural and not substantive. This argument, however, misreads the narrow issue addressed by the Bethlehem court. The district court’s consideration of the limitation statute was confined to sections 647(2)(e) and (f) 1 and the *1357 issue addressed was whether the provision setting the maximum limitation on the amount of thе fund created by the action was substantive or procedural.
17. In this case, the issue before the Court is quite different, i.e., whether the right to invoke the benefits of the limitation statute are procedural or substantive (emphasis added). In distinguishing between the substantive and procedural nature of the right to seek damages, the Court’s attention was directed to the Canadian Supreme Court’s opinion in Livesly v. Horst, [1924] S.C.R. 605. In a well-reasoned opinion by one of Canada’s most distinguished jurists, Sir Lymon Duff, it was stated:
The concept of procedure, too, is, in this connection, a comprehensive one, including process and evidence, methods of execution, rules of limitation affecting the remedy and the course of the court with regard to the kind of relief that can be granted to a suitor. But it does not, of course, extend to substantive rights; and here questions of substantive rights include all questions as to the “nature and extent of the obligation”____
18. Therefore, if the limitation of liability provisions of the Canadian Shipping Act are found to create a right to recover damages, then the provision is substantive.
Norwalk Victory,
19.' The relevant portions of the Canadian Shipping Act, § 649(l)(a) and (b) provide:
649. (1) Sections 647 and 648 extend and apply to
(a) the charterer of a ship;
(b) any person having an interest in or possession of a ship from and including the launching thereof; and
where any of the events mentioned in paragraphs 647(s)(a) to (d) occur without their actual fault or privity, and to any person acting in the capacity of master or member of the crew of a ship and to any servant of the owner or of any person described in paragraphs (a) to (c) where any of the events mentioned in paragraphs 647(2)(a) to (d) occur, whether with or without his actual fault or privity.
Upon thorough review of Section 649(l)(a) and (b) of the Canadian Shipping Act, the pleadings and oral arguments of counsel, and the testimony of the expert witnesses, the Court finds along with the learned expert witnesses for the petitioners, that the above provision of the Canada Shipping Act is substantive and attaches to the rights creаted by that Act. Since the provision is part of the substantive law of Canada, the Court also finds that the Canadian limitations statute should govern the instant action.
The Court finds that Petitioners, as a time charterer, is entitled to invoke this limitation of liability action and this action is properly before this Court. Therefore, Claimants’ Motion to Dismiss the Petitioners’ Limitation of Liability Complaint is
*1358
denied. Claimants’ Motion for Summary Judgment that United States limitation of liability law must govern this controversy is also denied. Petitioners’ Motion for Summary Judgment that the Canadian limitation of liability act governs the instant action is granted.
See, Petition of Chadade Steamship Co., Inc. (Yarmouth Castle),
20. In order to determine whether this case should be dismissed for
forum non conveniens,
the Court must first ascertain whether American or Canadian law is applicable.
Chiazor v. Transworld Drilling Co.,
21. The Claimants do not dispute that Canadian substantive law is applicable. It is a well-settled principle of admiralty law that “in the absence of some overriding domestic policy translated into law, the right to recover for a tort depends upon and is measured by the
lex loci delicti commissi,
i.e., the law of the place where the tort occurred.”
Black Diamond S.S. Corporation v. Robert Stewart & Sons (Norwalk Victory),
22. Choice of law is determined by eight factors set forth in
Lauritzen v. Larsen,
(1) place of wrong
(2) law of the flag
(3) domicile of injured seaman
(4) allegiance of shipowner
(5) place of contract
(6) accessibility of foreign forum
(7) law of the forum
(8) base of operations
See Nunez-Lozano v. Rederi,
23. The present action arises out of an accident in the territorial waters of Canada, on board a vessel owned by a Canadian corporation flying the flag of Canada, in which injuries were sustained by Canadian citizens hired in Canada by an American corporation.
24. The contacts necessary to create an American base of operations must be substantial.
Fisher v. Agios Nicolaos V,
*1359
25. While the Court is mindful of the admonition that “Lauritzen did not create a contact counting test,”
Hellenic Lines Ltd. v. Rhoditis,
26. After the applicable law is ascertained, that result is utilized in the Court’s resolution of the
forum non conveniens
issue.
Chiazor v. Transworld Drilling Co.,
27. The factors which the Court must consider in determining whether to grant a motion to dismiss on grounds of
forum non conveniens
were set forth by the Supreme Court in
Gilbert,
28. The Supreme Court held in
Piper Aircraft Co. v. Reyno,
29. The Claimants contend that the remedy available to them in Canada is limited to workers’ compensation which, they contend, is so inadequate in amount to be no remedy at all. In addition to being available, the altеrnative forum must also be adequate. In
Piper,
the Court held that a change in law unfavorable to the claimants should not play a significant role in the
forum non conveniens
balancing analysis unless, the Court hypothesized, “the remedy [offered by the alternative forum] is so clearly inadequate or unsatisfactory that it is no remedy at all.”
Piper,
30. Under Gilbert analysis, relevant private and public interest factors strongly point toward dismissal of this ac *1360 tion. It appears to the Court that discovery and trial on the issue of liability and damages will be greatly facilitated if this action proceeds in Canada. Almost all sources of documentary and physical evidence are located in Canada where the vessel was registered, classified, modified, maintained and repaired. As to availability of witnesses, the great bulk of the witnesses, both with respect to the liability and damages aspects of this matter, are located in Canada. The factors such as availability of compulsory process and cost of attendance of witnesses at trial favor a forum non conveniens dismissal.
31. Another critical private interest factor, in addition to the availability of evidence and witnesses, is the Court’s ability to assert jurisdiction over all parties to the litigation, including potential third-party defendants. In the case at bar, not all potential culpable parties are before this Court. Carino, as well as the Canadian аrchitects and shipyards who modified, maintained and repaired the vessel are located in Canada. Maintenance of suit in this forum would likely result in additional Canadian litigation with respect to these other potential defendants. It would be “burdensome” to Petitioners to require them to litigate the liability and damages issues here, relegating them to separate indemnity and/or contribution actions against the remaining potentially-liable parties in Canada.
Piper Aircraft Co. v. Reyno,
32. This Court is also impressed by the strong interest shown in this incident by the Canadian government. The Supreme Court considered this factor in
Piper,
33. Despite the fact that the Petitioners are American companies, any interest which the United States might have in regulating the activities of American companies abroad is simply insufficient when weighed against the great interest of Canada in this controversy. “The American interest in this accident is simply not sufficient to justify the enormous commitment of judicial time and resources that would inevitably be required if the case were to be tried here.”
Piper Aircraft Co. v. Reyno,
34. In the face of these significant contacts with Canada, the Claimants argue that this Court is precluded from dismissing the suit of an American seaman on grounds of
forum non conveniens.
The claimants also assert that not only is the Cоurt precluded from dismissing the claim of Kelly Wayne McCamy, but the Court must retain jurisdiction over the claims of the foreign litigants as well. Or
*1361
dinarily, there is a strong presumption in favor of the claimants’ choice of forum, one which is overcome only when the private and public interest factors clearly point toward trial in the alternative forum.
Piper Aircraft Co. v. Reyno,
The forum non conveniens dismissal is conditioned on the following: Petitioners GSI and TI are to (1) submit to service of process in an appropriate Canadian court within ninety (90) days of the date of this order; (2) waive any statute of limitation defense; and (3) agree to satisfy any judgment rendered by the Canadian court. Should GSI and TI fail to meet any of these conditions, this Court will resume jurisdiction over this case.
35. All Findings of Fact recited above are deemed Conclusions of Law and are hereby adopted as such.
36. For the reasons discussed above, it is hereby ORDERED, ADJUDGED, and DECREED that
Petitioners’ Motion to Strike Claimants’/Respondents’ Supplemental Brief and Claimants’/Respondents’ Amended, Supplemental and Additional Motion to Dismiss, Response to Defendants’/Petitioners’ Motion to Dismiss and Combined Brief in Support of said Motions and Responses is Denied; Claimants’/Respondents’ Motion to Dismiss is DENIED;
Claimants’/Respondents’ Motion for Summary Judgment is DENIED; Petitioners’ Motion for Summary Judgment that Canadian law governs this controversy and all the claims filed in this action is GRANTED;
Petitioners’ Motion to Dismiss the Claims filed in this limitation of liability proceeding on grounds of forum non conveniens is GRANTED.
Notes
. The Canada Shipping Act, §§ 647(2)(e) and (f), provides:
(2) The owner of a ship, whether registered in Canada or not, is not ... liable for damages beyond the following amounts, namely,
*1357 ******
(e) in respect of any loss of life or personal injury, either alone or together with any loss or damage to property or any infringement of any rights mentioned in paragraph (d), an aggregate amount -equivalent to 3,100 gold francs for each ton of that ships tonnage; and
(f) in respect of any loss or damage to property or any infringement of any rights mentioned in paragraph (d), and aggregate amount equivalent to 1,000 gold francs for each ton of that ship’s tonnage.