The surviving widow and dependents of a Greek seaman killed on a foreign vessel in an American port were awarded damages in this wrongful death action, which was brought under the Jones Act and general maritime law. The defendants held liable (the shipowner Valsky, a Liberian corporation, and the ship operator Valmas, a Panamanian corporation) contend principally that the district court erred (a) in failing to grant a motion for dismissal based on forum non conveniens, (b) in applying United States rather than Greek law, and (c) by incorrectly computing the damage award. We find no reversible error and therefore affirm the judgment of the district court. FACTS
The decedent, Dimitrios Kepessidis, a citizen of Greece, was hired in Greece as the chief engineer for the M-V AGIOS NICOLAOS V and joined the vessel in Beaumont, Texas, on May 22, 1976.
The AGIOS NICOLAOS V is a Greek flag-flying and Greek registered vessel owned by defendant, Valsky Maritime, Ltd. (Valsky), a Liberian corporation. It is operated by the defendant Valmas Brothers Shipping, S.A. (Valmas), a Panamanian corporation.
On June 1, 1976, Chief Engineer Kepessidis, who had only nine days earlier joined the crew of the AGIOS NICOLAOS V, had gone to help one of the crew start the engine boilers. They were unsuccessful in three attempts. On the fourth attempt, the boiler exploded, and the decedent was burned. Despite being injured, the decedent proceeded to fight the fire, but the fire extinguisher he used was not in working order. In a further attempt to extinguish the blaze, members of the crew turned on the carbon dioxide system. In doing so, however, no one took a head count, and Chief Engineer Kepessidis was trapped in the engine room, where he suffocated from the carbon dioxide.
We should here note that the defendants do not attack the district court’s findings that the decedent’s accident and death resulted from the unseaworthiness of the vessel
ISSUES
On appeal, the defendants-appellants raise the following principal issues: (1) Whether the trial court erred in retaining jurisdiction of this suit (a forum non conveniens contention); (2) If jurisdiction were properly retained, whether the district court erred in applying American law rather than Greek law; and (3) Whether the damages were properly computed, in that (a) the award of future loss of earnings was not discounted to present value and (b) prejudgment interest was improperly allowed (or, alternatively, at the wrong rate).
I. Forum Non Conveniens
The defendants’ motions in the trial court did not dispute its jurisdiction of these maritime claims, nor that court’s discretion in determining whether the action before it should be conditionally dismissed on forum non conveniens grounds that the Greek courts were a more suitable forum. As we apprehend their argument before us, the ultimate contention of the defendants is that the district court abused its discretion in not dismissing the suit because, in their view, the court was in error under the Lauritzen test (see text at note 7 infra) in determining that American law applied.
The fountainhead decision in determining application of the forum non conveniens principle is Gulf Oil Corporation v. Gilbert,
In the exercise of discretion to retain jurisdiction of maritime tort suits, the Unit
[T]he question is not whether an injustice will result if the court does not exercise jurisdiction, but whether exercising jurisdiction will result in an injustice . Under the proper standard, the court must begin with the assumption it will exercise jurisdiction unless it is established, by the defendant, that an injustice would follow.
Poseidon Sehiffahrt, G. M. B. H. v. The M/S Netuno,
Reviewing the district court’s exercise by this standard of its discretion to retain jurisdiction, we find no abuse. Even aside from the district court’s correct determination that American law applies (which dictates rejection of a forum non conveniens dismissal, see part II of this opinion below), we would be unable to hold that the trial court discretion was abused when it retained jurisdiction, based upon such factors here present as: the accident having occurred in a United States port, with investigations having been undertaken by American agencies (the coast guard and the local fire department) and medical authorities; American counsel having been retained, with substantial steps toward adjudication having already been undertaken; the joinder with the maritime tort claims of a bona fide wage claim arising under American law; and the substantial issue from the onset of the litigation as to whether American or Greek law
We do not find persuasive the defendants’ forum non conveniens arguments. First, they state that the trial court’s refusal to find Lauritzen factors alone determinative as to this issue presents an error of law or a clearly erroneous factual determination; but they overlook that these choice-of-law factors, while perhaps relevant since American law’s application ends further inquiry (see II below), are not determinative as to forum non conveniens as Lauritzen itself states.
An appellate court reverses the decision of a district court on a motion to dismiss on forum non conveniens if it constitutes a clear abuse of discretion. Fitzgerald v. Texaco, Inc.,
II. Choice of Law as a Factor in Forum Non Conveniens Decision
The defendants have argued their forum non conveniens contentions on the basis of choice of law considerations, as if the latter supplied an interchangeable test for both issues. Some observations about the interplay of forum non conveniens and choice of law considerations might therefore be appropriate.
Lauritzen v. Larsen (discussed in III infra) is the fountainhead decision in determining choice of law principles to govern suits brought in American courts by foreign seamen against foreign shipping interests. Lauritzen, in reversing the lower courts’ determination that the American Jones Act rather than a foreign compensation law governed, indicated that a forum non conveniens consideration was not relevant in
To the contrary, however, choice of law factors are relevant in the determination of a forum non conveniens issue. This is so, because one of the factors favoring non -retention of jurisdiction is the application of foreign law to the controversy, which is less convenient for American courts to apply than it is for the courts of that foreign country. Gulf Oil Co. v. Gilbert,
Thus, where by application of the Lauritzen factors the correct choice of law decision is to apply foreign law (and a foreign forum is accessible), a district court’s discretion in granting a forum non conveniens dismissal will not ordinarily be disturbed on review. DeMateos v. Texaco Inc., supra; Anastasiadis v. S. S. Little John,
However, for similar forum non conveniens reasons, if United States law is applicable, the American court should retain jurisdiction rather than relegate the controversy to a foreign tribunal. Thus, for instance, in Antypas v. Cia. Maritima San Basilio, S.A.,
III. Choice of Law: American or Greek?
The choice of law issue is posed as follows: The plaintiffs contend that the American Jones Act and general maritime law as administered by United States courts furnish the substantive rules for determining liability and damages. The defendants contend that Greek law, furnishing a workmen’s compensation type remedy, is instead applicable. The plaintiffs alternatively contend that, if Greek law does furnish the rule of decision, then under the present
When a foreign seaman brings suit against a foreign vessel or foreign shipping defendants, the factors to be examined in determining a choice of whether United States or some foreign law applies, have been set out by the United States Supreme Court in the Lauritzen-Romero-Rhoditis trilogy: Hellenic Lines, Ltd. v. Rhoditis,
Lauritzen set out seven connecting factors generally regarded as significant, to be listed below, and in the case before it held that the overwhelming preponderance of these factors favored application of the foreign law, thus rejecting the application of the American Jones Act sought by the plaintiffs. Romero held that the Lauritzen factors applied to the determination of whether “the maritime law of the United States” may be applied,
The defendants make an extremely strong case for application of Greek law. They point out that the ship flew a Greek flag and had Greek registry, that the deceased seaman was of Greek nationality and had signed his employment contract in Greece,
The district court held, however, that it was instead appropriate to apply United States law to the consequences of this accident in an American port, to which a seaman had flown to join the vessel, and in which port he had worked during his entire service on the vessel prior to the fatal accident there. In rejecting the defendants’ substantial contention that Greek law should be applicable, the district court primarily relied upon as a determinative factor that, prior to the accident,
We thus do not find merit to the defendants’ argument that the district court erred in its conclusion of law that United States law may apply to this foreign seaman’s accident in a United States port, where the vessel had a substantial base of operations in the United States and its owners derived substantial revenues from United States trade. Under Rhoditis and subsequent ju
The defendants’ contention, then, is rather that the district court was clearly erroneous in its factual finding that the vessel had a substantial United States base of operations and thereby derived substantial revenues. See its conclusions of law III and XII (making III a conclusion of fact also). The district court’s determination that a shipowner has or has not a substantial base of operations in the United States is a factual finding that should not be disturbed on review unless clearly erroneous. Fitzgerald v. Liberian S/T Chryssi P. Goulandris,
So tested, we cannot find reversible error. The AGIOS NICOLAOS V had proceeded directly to a United States harbor from Spain upon its purchase by the defendant Valsky, the only vessel owned by that corporation.
Since we have found no error in the district court’s conclusion United States law applies, we need not reach the plaintiffs’ alternative contention: Even if American law were not applicable under the Lauritzen-Rhoditis tests, the Greek law-if applicable to the present accident-would still require a determination by reference to American law. In making this contention, the plaintiffs rely upon the testimony of an expert witness relative to Greek law. He testified that, in circumstances of either gross negligence or of a breach of safety regulations causing injury (as plaintiffs state is here present, see factual summary in footnotes 2 and 3 supra), a Greek seaman injured in a foreign port on a Greek vessel has a tort action under Greek law that is governed by the place of the tort (i. e., here, the American harbor).
IV. Computation of Damages
Finally, the defendants contend that, at any rate, the district court erred (a) in its failure to discount future earnings to present value and (b) with regard to prejudgment interest allowed on the entire record. However, we ultimately hold that any errors in calculation are harmless (if erroneous), because in clear error the district court likewise computed earnings at 750 dollars instead of at 750 British pounds (worth $1,350) per month. Any erroneous allowance was thus cancelled out (see IV(c) infra) by the diminution in the awarded damages resulting from this erroneous calculation based on dollars instead of pounds. International Paper Company v. Busby,
(a) Failure to discount future earnings
The district court awarded $108,800 to the decedent’s widow and child. Of this amount, $13,750 is for loss of contributions
In refusing to discount to present value the decedent’s loss of future earnings, Johnson v. Penrod Drilling Company,
The defendant contends that discount for such reason is not permissible unless the record contains evidence that such future increase in earnings would most probably have been granted in recognition of performance and experience, rather than upon Johnson -prohibited inflationary factors alone. Higginbotham v. Mobil Oil Corporation,
(b) Prejudgment interest
(1) The defendants correctly point out an error in the calculation of the district court’s award. Prejudgment interest was allowed on a loss of future earnings awarded (as to which, of course, no loss by delay in paying had been caused at the time of judgment). Doucet v. Wheless Drilling Co.,
(2) The defendants also argue that the appropriate annual rate of prejudgment interest in Texas is 6% instead of the 9% awarded. Pretermitting the issue of the district court’s admiralty discretion to allow under some circumstances a greater rate than the statutory rate prevalent in the state, In re Vulcan,
(c) Harmless error
In its finding of fact, the district court stated that the decedent was paid “a monthly wage of $750 and a yearly wage of $9,000,” and calculated the decedent’s loss of earnings on this basis. However, the use of the dollar figure for monthly wages was clearly erroneous, since the uncontradicted testimony shows that the decedent was paid in British pounds at a rate of 750 pounds per month, see Exhibit P-2 and Transcript of evidence, II, pp. 54, 105, cf. Astifidis dep. p. 48, and that at the applicable time the exchange rate was 1.8176 dollars to the
If the computation of earnings loss had been correctly calculated on the basis of British pounds instead of dollars, the amounts actually awarded by the district court would have closely approximated the amounts that the plaintiffs were entitled to be awarded on the basis of the district court’s findings. See Appendix attached to this opinion, which sets forth the detailed computations. The district court’s errors in calculation therefore cancelled out any prejudice claimed by the defendants, since the plaintiffs were undercompensated to the same extent, and the errors, if any, are harmless. See International Paper Company v. Busby,
Conclusion
For the reasons set forth above, we AFFIRM the district court judgment.
APPENDIX
The trial court computed the loss of contributions based on decedent’s salary of $750 per month. However, the testimony clearly established that the decedent’s monthly income was 750 British pounds. (Expert testimony established that the applicable exchange rate was 1.8176 dollars to the British Pound Sterling.)
In using the $750 a month figure, the trial court calculated decedent’s yearly income at $9,000. Finding that decedent would spend approximately one-third on himself, the court found the remaining $6,000 would be spent by decedent for the benefit of his wife and child, in the yearly amount of $5,500, and his parents, in the yearly amount of $500. (The amount to his parents-total of $5,000 to each-appears to have already been discounted to present value.)
Based on the widow and child receiving $5,500 yearly, the court mulitipled this figure by the life expectancy of the deceased. The total loss of contribution to the widow and child was found to be approximately $108,800. The trial court then granted prejudgment interest on the entire amount at 9% for 2.5 years (time between death and judgment) and failed to discount it. Therefore, the ultimate award (including prejudgment interest) for loss of contributions totaled $133,-280. The trial court failed to discount any portion of this award.
As stated .in the body of the opinion, the trial court erred in granting prejudgment interest on future earnings awarded, as well as possibly by failing to discount to present value that portion attributable to future loss of support. Nevertheless, when the damages are properly recalculated by computing the decedent’s monthly salary at 750 British pounds, the trial court’s computation, if erroneous in these regards, was harmless.
At 750 pounds per month, decedent’s monthly salary was approximately $1,350. Decedent’s yearly salary, therefore, would be $16,200. Of this amount, decedent would under the district court’s findings use one-third ($5,400) yearly for himself, $500 per year for his parents, and the remaining $10,300 for his widow and child.
Accepting the defendants’ allocation as appropriate for discount computation, the decedent’s life expectancy will be attributed as follows: 2.8 years from death to date of judgment and 17.0 years post-judgment.
The loss of contribution to his widow and child prior to date of judgment, then, is $28,840 (2.8 X $10,300). Prejudgment interest at 9% should be allowed on this amount. The interest on this is rounded to $2,596. Hence, prejudgment loss of contributions should have been calculated by the trial court to be $31,436, including interest.
Accepting the defendants’ contention that discount was appropriate, post-judgment loss of contribution should have been calculated as follows: $10,300 per year X 17 years, discounted to present value at 7‘/2% (the then prevailing rate in the community for federally issued certificates of deposit). The post-judgment loss of contribution would be $97,170. See Gushee, Financial Compound Interest & Annuity Tables, 1942. Thus, the total loss of contributions to widow and child, utilizing a 7‘/2% discount value, was $128,606.
However, the trial court stated that, if it did discount to present value (as it ultimately did not), it would use a 6% interest rate. Tr. Ill, p. 445. If such a discount rate were used, the total (discounted) loss of contributions to the decedent and the widow would be as follows: prejudgment, $31,436; post-judgment, $107,913; total, $138,349. See Gushee, supra.
In conclusion the trial court actually awarded the widow and child, for loss of contributions, the amount of $133,280 (including prejudgment interest), based upon its erroneous use of a monthly salary for the seaman of 750 dollars instead of 750 British pounds (i. e., $1,350 monthly). If the amount were recomputed correctly by using the
Accordingly, the error of the district court in the computation of damages was harmless error.
AFFIRMED.
Notes
. The two corporate defendants were owned and operated entirely by three brothers, Nicholas Valmas, Christothis Valmas, and Dimitris Valmas, all of whom were citizens and residents of (Greece.
. The district court found that the defendants’ vessel and its equipment were unseaworthy in that the starboard auxiliary boiler had a defective leaking fuel valve and defective equipment, in that the boiler was having to be operated and attempted to be ignited on a manual basis when the equipment was designed to be automatic but which automatic features had broken down and had not been repaired despite reasonable opportunity for such repair, in that the boiler was not equipped with an adequate sight glass or other safety device to accord an operator a reasonable opportunity to inspect the furnace for possible leaking fuel oil, in that the controls, operations manuals, etc., were all in Swedish rather than Greek, and in that the crew was not given proper training and instructions in the proper and safe method to operate these automatically designed boilers in a manual fashion. The court properly found that this unseaworthiness proximately caused the accident resulting in the death of the late Mr. Kepessidis.
. The district court found: The defendants were negligent in failing to assure that all fire extinguishers were functioning properly, in failing to see that proper fire drill procedures occurred aboard ship, in resorting to the Co
. The defective leaking valve caused a residue of gas to build up after each unsuccessful attempt to ignite the boiler. Relying on expert evidence that the decedent should have allowed a minute or two to elapse (so as to allow the gas to dissipate) after each unsuccessful attempt, the defendants contend that the decedent’s fault contributed to the accident. We find no error in the district court finding that the decedent could not have reasonably known of the defect so as to take such precaution and did not act Without reasonable care for his own safety under the circumstances; as well as its conclusion that the decedent’s relatively minor burns would not have resulted in his death, which was due to carbon dioxide suffocation brought about by the negligence (bordering on gross) of the defendants.
. The district court’s findings of fact in an admiralty case are binding unless clearly erroneous. Fed.R.Civ.Proc., Rule 52(a). In a judge trial of an admiralty claim, questions of negligence and proximate cause are treated as fact questions and a finding of fact of the trial court on these issues will not be overturned on review unless clearly erroneous. Marcona Corporation v. Oil Screw Shifty III,
. Even if Greek law applied, a substantial showing is made by the plaintiffs’ Greek-law expert that, in the event the death was caused by the defendants’ gross negligence or failure to comply with a safety regulation, the plaintiffs’ claim for maritime tort damages would be governed by the law of the place where the tort occurred, i. e., the United States.
. Lauritzen v. Larsen,
a maritime tort claim. See Part III of opinion below.
The courts sometimes base the application or not of a forum non conveniens dismissal of a seaman’s suit on Lauritzen factors. See, e. g., Anastasiadis v. S. S. Little John,
The chief relevance of the Lauritzen factors to a forum non conveniens decision is that if the choice is American law, it would rarely, if ever, be appropriate to relegate the foreign seaman to a foreign forum, see II, infra, and no decision has been found so doing.
. • The defendants rely upon the court’s statement in Belgenland that “the case of foreign seamen is undoubtedly a special one when they sue for wages under a contract which is generally strict in its character and framed according to the laws of the country to which the ship belongs; framed, also, with a view to secure, in accordance with those laws, the rights and interests of the shipowners as well as those of master and crew, as well when the ship is abroad as When she is at home. Nor is this special character of the case entirely absent when foreign seamen sue the master of their ship for ill-treatment. On general principles of comity, admiralty courts of other countries will not interfere between the parties in such cases unless there is special reason for doing so . . . .”
. Bickel, The Doctrine of Forum Non Conveniens as Applied in the Federal Courts in Matters of Admiralty, 35 Cornell L.Q. 12 (1949); Morrison, The Foreign Seaman and the Jones Act, 8 Miami L.Rev. 16, 17-18 (1953); Comment, A New Look at Lauritzen v. Larsen, Choice of Law and Forum Non Conveniens, 38 La.L.Rev. 957 (1978); Note, The Convenient Forum Abroad Revisited, 17 Va.J.Int.L. 755, 764-66 (1977).
. See, e. g., Conte v. Flota Mercante del Estado,
. Comment, A New Look at Lauritzen v. Larsen, Choice of Law and Forum Non Conveniens, 38 La.L.Rev. 957, 958 (1978):
The mere fact that a suitor is a foreign seaman does not bring into play the doctrine of forum non conveniens. Foreign seamen’s suits broadly fall into two categories: those which involve a cause of action based on the laws of the United States and those which do not. Forum non conveniens as applied to foreign seamen is properly concerned only with the latter class of cases, those in which a foreign seaman has no cause of action based on the laws of the United States. When a foreign seaman has a cause of action based on the laws of the United States the seaman comes by right into the courts and the retention of his suit based on domestic law- should be mandatory. Retention of the suit is not discretionary, because once the scope of United States law has been defined the judiciary is not free to adjudicate selectively the effects of the law. Therefore, the object of judicial inquiry at the outset of a foreign seaman’s suit is to determine the applicable law, and only if United States law is found not to govern the suit should the appropriateness of the United States forum be examined.
. In Rhoditis a suit under the Jones Act was brought, as here, by a Greek seaman injured in a United States port aboard a Greek flag vessel owned by a Greek corporation. Under the Lauritzen test, four factors favored the defendant shipowner and against the retention of jurisdiction. Yet, since it was determined that the defendant had a substantial base of operations in the United States, the court decided that United States law should apply, despite the fact that the factors delineated in Lauritzen would suggest otherwise.
. The contract also included a provision that Greek law and Greek courts would exclusively determine rights under the employment contract including claims on account of illness or accident. A similar agreement was disregarded as of little relevance in Rhoditis, in its determination that the American Jones Act afforded a remedy to a Greek seaman under circumstances similar to the present. Probably due to the disparity in bargaining power between the seaman and his employer, American courts have generally accorded little determinative weight to such contractual choice of law provisions. G. Gilmore and C. Black, The Law of Admiralty 476 (2d ed. 1975).
. The plaintiffs argue that the Liberian and Panamanian incorporations by the Greek nationals, presumably adopted to avoid application of some Greek laws, should not be selectively disregarded at the option of the defendant corporations, solely urged to require the application of Greek law and to defeat the application of American law to the plaintiffs’ claim.
. In arguing that a Greek forum is not accessible, the plaintiffs rely upon expert evidence to the effect that, under Greek law, the domicile of the corporations (not of the stockholders) (see note 14 supra) determines personal jurisdiction, and that an agreement between parties to confer jurisdiction on Greek courts (see note 13 supra) is not enforceable in Greece.
. From external manifestations as of the time of the accident, the vessel had been purchased primarily to service the American grain trade. The defendants argue that the vessel’s post-accident use belied extensive service to and from American courts. However, we agree with the plaintiffs that the post-accident use of a foreign vessel previously used entirely in America should not be determinative as to the application or not of American law. But for the accidents) in an American harbor causing large exposure to damages under American law, the plaintiffs ask, who is to say that the owner and operator might have continued to have the vessel ply to and from American ports in the-profitable carriage of American grain cargos?
. Here, under the findings, substantial revenues were derived from a substantial base of operations in the United States. We do not, of course, intimate that doing any amount of business in a U.S. port, however minor, is alone sufficient to establish a “substantial base of operations.” See Romero, supra; Manlugon v. A/S Facto,
. The plaintiffs additionally rely in brief upon the purchase of the vessel having been financed through a United States bank branch. See Gomez v. Karavias,
. The decedent’s annual salary was found by the district court to be $9,000. Of this amount, $3,000 was the amount found that decedent would spend for his own needs, $500 for his ' parents, and the remaining amount ($5,500) for his widow and child. The award was based on decedent’s life expectancy of 19.8 years.
. In calculating earnings on a twelve month basis, the district court rejected the defendants’ argument that a lesser work year of 7.6 months per year should be allowed. The argument was based upon the decedent’s average work-year during the five years prior to his death. The evidence shows, however, that the decedent had gone to school to become a diesel chief engineer for a part of those five years, Astifidis dep. pp. 24, 25, 39; that in that interval he had worked continuously for 14 months and 14 days, Id. at pp. 20, 21; and that Greek seamen receive annual bonuses totalling approximately 2'h months salary, Tr., II, pp. 106-108.