743 F.2d 1140 | 5th Cir. | 1984
Foreign nationals injured by the collision on the high seas of two vessels flying the flags of different nations seek redress from the owners of both vessels in a United States district court. Absent compelling reasons, such a suit obviously ought not to be divided into separate suits against the owner of each vessel with each case then to be tried separately in the forums of different nations, for that sort of bifurcation creates not only the necessity of two separate trials to determine responsibility for a single event, but also the possibility of inconsistent results.
This litigation arises from the collision of two vessels in the Mediterranean Sea. Seven separate suits were filed in a Louisiana district court for the deaths of seven of the seamen, who were members of the crew of one of the vessels, seeking joint and several recovery against the owners of both the vessel on which they had been working and the other vessel involved in the collision. On motion of the owner of the employer vessel, the district court transferred the claims against it to the Southern District of New York but, concluding that personal jurisdiction over the owner of the other (non-employer) vessel was wanting, dismissed the claim against it on the basis of forum non conveniens, conditioned on the owner’s submission to the jurisdiction of some appropriate court. Because the United States District Court for the Eastern District of Louisiana had jurisdiction over the owner of the non-employer vessel, and because American law, interpreting the communis juris, is applicable to the claims against it, we reverse the judgment dismissing the claims against the owner of that vessel.
Because no issue has been raised concerning the transfer of the claims against the seamen’s employer, we do not consider the correctness of that order. However, those claims having been transferred to the Southern District of New York, we remand for transfer of the claims against the non-employer defendant to the same court.
I.
Thirty-two members of the crew of the M/V FEDDY, each of whom had been a resident either of Taiwan or Hong Kong, died as a result of a collision between the FEDDY and the M/V SOUNION in the Mediterranean Sea off the coast of Algeria in 1981. Seven suits were filed in the Eastern District of Louisiana by the personal representatives of Taiwanese crew members who had signed contracts of employment in Taiwan, Republic of China. These were consolidated and all are included in this appeal.
The FEDDY, which was registered in Liberia, was owned by Solvang Shipping Company and operated by Skaarup Shipping Company; the SOUNION was owned by Summit Investment, Inc. Skaarup is a New York corporation with offices in Greenwich, Connecticut. It contends that
Skaarup and Solvang sought transfer of the action to the Southern District of New York as a more convenient forum, invoking 28 U.S.C. §§ 1404(a) and 1406(a). The district court ordered the transfer, and no objection to that order is urged on appeal. This appeal, therefore, concerns only the dismissal of the action against Summit, the owner of the SOUNION, the vessel that was not the seamen’s employer.
Summit is a Panamanian corporation whose stock is owned by Greek nationals. The M/V SOUNION is registered in Greece and has never entered Louisiana waters. Save for Summit’s statements to the court, the record contains no evidence that Summit has an American base of operations. Discovery of facts concerning Summit’s operations and ownership has never been completed, but its sole American connection established to date is that it owes a mortgage on the SOUNION to a New York bank. The record shows no connections between the SOUNION and the Eastern District of Louisiana.
Summit filed a motion to dismiss the claim against it either for want of jurisdiction over its person, or, alternatively, because the forum was inconvenient. Thereafter, when the SOUNION called at the Port of Chicago, the plaintiffs filed an in-rem complaint against the vessel in the Northern District of Chicago. To avoid arrest of the vessel, Summit agreed to provide a letter of undertaking and to “enter appearance in EDLA ... waiving personal jurisdiction defense of U.S. courts but with full reservation of all other rights or to pursue forum non conveniens, transfer, etc.” (Emphasis added.)
Summit then filed a motion for transfer of the suits against all defendants, including Summit, to the Southern District of New York. The plaintiff resisted that motion. Summit’s brief asserted that the motion was based on the thesis that the Eastern District of Louisiana was not a proper venue for the suit. Summit relied on 28 U.S.C. § 1406(a), which deals with transfer of a case laying venue in the wrong district, and took “the position that transfer to the Southern District of New York [was] proper as to it and that therefore transfer to that forum is transfer to a forum in which the case might have been brought.” Summit’s brief also stated: “Summit is not yet asking for the Sec. 1406(a) dismissal, but preliminarily seeks transfer to the Southern District of New York where Summit contends venue is proper.” Summit stated that it had sufficient contact with the State of New York to support personal jurisdiction and venue there. That district, it contended, was not excluded by the provision in § 1404(a) permitting transfer only to a court in which the action “might have been brought,” because that section is “remedial in nature. [Its] purpose is served by consideration of each case individually in light of convenience and fairness and ... by a broad and unrestrictive reading of the term ‘where it might have been brought.’ ”
The trial court ordered the claims against Solvang and Skaarup dismissed for lack of personal jurisdiction. The court said that transfer of the case under §§ 1404(a) and 1406 would not be “in the interest of justice.” The plaintiffs knew or should have known, the court said, that service of process could not be effected in the Eastern District; the court would not allow these transfer sections “to be used to aid non-diligent plaintiffs who knowingly file a case in the wrong district.” It therefore referred to Summit’s original motion, which alternatively sought dismissal of the suit because the forum was not convenient, and dismissed the claims against Summit. At this juncture, the entire suit was dismissed.
The district court noted that it would have preferred to transfer the claims against Summit to the Southern District of New York “for that Court’s decision on the issue of forum non conveniens as it relates to all defendants in the wrongful death actions” but did not do so because it was not convinced that New York was a district in which the actions might have been brought.
II.
The district court stated that, as to the SOUNION, it must determine first whether United States or foreign law governed the seamen’s claims. If it found United States law applicable, it would retain jurisdiction. If it found foreign law applicable, it would then consider the convenience of the forum.
This approach confuses the analysis applicable to a Jones Act unseaworthiness claim by a seaman against the vessel aboard which he was employed with that applicable to a claim by a person injured on the high seas against a vessel with which he had no employment connection. The applicability of the Jones Act and the almost invariably related unseaworthiness claim against the owner of the employer vessel turns not only on the crew member’s connection with the vessel but on other factors that are essential to determining that these American law bases for liability may exist. That decision must be based on the Lauritzen-Rhoditis factors, which determine whether either United States or foreign law is applicable.
A different preliminary analysis for determining the applicable body of law is necessary with respect to a seaman’s claim against a third-party vessel for injuries sustained as a result of an alleged tort on the high seas. That sort of claim must be decided by principles of United States law, interpreting and applying the communis juris, the common law of the seas.
In either type of case, the first question is whether the court has subject matter jurisdiction of the suit. Lacking such jurisdiction, there is no power to consider per
At the time the claims against Summit were dismissed, there was no need to consider the question of personal jurisdiction: Summit had submitted itself at least to the jurisdiction of the Eastern District of Louisiana. The only disputed question before the district court was whether it should decline to exercise the jurisdiction thus established.
The guiding principles for determining forum convenience are set forth in Gulf Oil Corporation v. Gilbert
While not specifically confined to the suits of crew members against their em-p]0yers or host vessels, the Lauritzen-Rho¿litis factors focus on the applicability of the Jones Act to the claims of seamen against those who stand in the locus of employer. These criteria also apply to the suit of a foreign claimant for injuries sustained in foreign coastal waters.
The Court announced in The Belgenland that a federal court is to retain jurisdiction of such cases unless doing so will result in an injustice and must begin with the assumption that the court will exercise jurisdiction unless it is established, by the defendant, that an injustice would follow.
Retention of jurisdiction in suits involving the communis juris does not automatically follow from the applicability of American law. Thus, in Perusahaan Umum Listrik Negara v. M/V Tel Aviv,
In cases involving the communis juris, federal courts may, as both these decisions hold, decline jurisdiction to prevent misuse of a litigant’s ability to seek a favorable forum. If choice of forum is not being abused, the court should determine whether jurisdiction should be retained by considering first the availability of an adequate alternative forum, and, if such a forum is available, the private interests of the litigants, including access to sources of proof, the relative ease of service of process, the availability of compulsory process to obtain the attendance of witnesses, the cost of obtaining the attendance of witnesses, the possibility of view of the vessel,
“Unless the balance is strongly in favor of the defendant, the plaintiff’s choice of forum should rarely be disturbed.”
These factors weigh against dismissal here. There has been no showing that another forum is even available: there has been no showing that the courts of Taiwan would entertain this action. The only evidence concerning other forums is an affidavit by an expert on the law of the Republic of China that creates doubt of the essential predicate for dismissal: the existence of an available alternative forum.
III.
The district court thought that it lacked power to transfer the claims against Summit to the Southern District of New York under either Section 1404(a), which concerns transfer of a ease filed in a proper venue,
Sections 1404(a) and 1406(a) are both short, apparently clear, and seemingly mutually exclusive. Section 1404(a) permits transfer of a civil action to any other district in which it could have been brought, and refers to a civil action in which venue is properly laid in the district where the case was filed. Section 1406(a) pertains to transfer of a case laying venue in the “wrong district.” Neither section refers to jurisdiction, and it might be thought that a court lacking personal jurisdiction over the defendant has no power to issue any order. Indeed, the statutes are most frequently read in just this forthright manner. Yet, in law, as several poets have observed about life, things are not always what they seem. Section 1406(a) has been read by the Supreme Court to be “broad enough to authorize the transfer of cases, however wrong the plaintiff may have been in filing his case as to venue, whether the court in which it was filed had personal jurisdiction over the defendants or not.”
Judge Randall, writing for this court, has aptly referred to these cases as a “nearly hopeless muddle of conflicting reasoning and precedent.”
However, § 1404(a) requires that the transferee court be one in which the action “might have been brought.” As interpreted in Hoffman v. Blaski,
Ordinarily transfer of a suit against multiple defendants is proper only if all of them would have been amenable to process in, and if venue as to all of them would have been proper in, the transferee court.
But before thus putting asunder what the plaintiff has joined, the court must weigh carefully whether the inconvenience of splitting the suit outweighs the advantages to be gained from the partial transfer. It should not sever if the defendant over whom jurisdiction is retained is so involved in the controversy to be transferred that partial transfer would require the same issues to be litigated in two places.
When the defendant seeks transfer to another forum, over the objection of the plaintiff, the words of § 1404 allowing transfer to a district where suit “might have been brought” direct the attention of the judge to the situation that existed when suit was brought.
that thesis, if adopted, would empower a District Court, upon a finding of convenience, to transfer an action to any district desired by the defendants and in which they were willing to waive their statutory defenses as to venue and jurisdiction over their persons, regardless of the fact that such transferee district was not one in which the action “might have been brought” by the plaintiff. Conversely, that thesis would not permit the court, upon motion of the plaintiffs and a like showing of convenience, to transfer the action to the same district, without the consent and waiver of venue and personal jurisdiction defenses by the defendants. Nothing in § 1404(a), or in its legislative history, suggests such a unilateral objective and we should not, under the guise of interpretation, ascribe to Congress any such discriminatory purpose.38
Despite the commentators’ disapprobation of this decision
We do not reflect on the defendant’s manipulations alone: it is patent that each of the parties has engaged in a series of forum-selection maneuvers. So long as the plaintiff thought all litigation might be retained in Louisiana, he resisted transfer. Once transfer of part of the claim appeared inevitable, or at least the only alternative to dismissal, he sought transfer of all claims to a single court.
Our duty is to ignore the gamesmanship of the litigants and to seek the most just result permitted by applicable law. Almost
We do not believe that the rationale of Hoffman was intended to apply to a case where both parties have, by their procedural maneuvers, effectively consented to jurisdiction and venue in the transferee forum. At the time the plaintiffs sought transfer of the claims against Summit to the Southern District of New York, Summit had apparently consented to the jurisdiction of all United States courts, as its telex reads,
For these reasons the judgment is REVERSED and the case is REMANDED to the district court for transfer of the claims against the non-employer defendant to the Southern District of New York.
. 330 U.S. 501, 67 S.Ct. 839, 91 L.Ed.2d 1055 (1947).
. This is the method applied in Fisher v. Agios Nicolaos V, 628 F.2d 308 (5th Cir.1980), cert. denied, 454 U.S. 816, 102 S.Ct. 92, 70 L.Ed.2d 84 (1981), and since utilized by us in a number of cases involving claims against employers of crew members or the host vessel. See De Oliveira v. Delta Marine Drilling Co., 707 F.2d 843 (5th Cir.1983); Volyrakis v. M/V Isabelle, 668 F.2d 863 (5th Cir.1982).
. Lauritzen v. Larsen, 345 U.S. 571, 73 S.Ct. 921, 97 L.Ed.2d 1254 (1953).
. Hellenic Lines, Ltd. v. Rhoditis, 398 U.S. 306, 90 S.Ct. 1731, 26 L.Ed.2d 252 (1970).
. Jackson v. Jensen (The Belgenland), 114 U.S. 355, 5 S.Ct. 860, 29 L.Ed. 152 (1885); Kloeckner Reederei Und Kohlenhandel v. A/S Hakedal, 210 F.2d 754, 756 (2d Cir.1954).
. That paragraph reads:
For the convenience of parties and witnesses, in the interest of justice, a district court may transfer any civil action to any other district or division where it might have been brought.
An admiralty suit, either in personam or in rem, is a "civil action" within the meaning of this section. Cessna Aircraft Co. v. Brown, 348 F.2d 689 (10th Cir.1965); Continental Grain Company v. The FBL-585, 364 U.S. 19, 80 S.Ct. 1470, 4 L.Ed.2d 1540 (1960).
. The issue is one on which the courts of appeal are divided, but we have consistently so held, beginning with Koehring Company v. Hyde Construction Company, 324 F.2d 295 (5th Cir.1963); Aguacate Consolidated Mines v. Deeprock, 566 F.2d 523, 524-25 (5th Cir.1978); Ellis v. Great Southwestern Corp., 646 F.2d 1099, 1107 (5th Cir.1981).
The commentators approve this result although they note that courts reaching it differ about whether the statutory basis is § 1404(a) or § 1406(a). See 15 C. Wright, A. Miller, and E. Cooper, Federal Practice and Procedure § 3827 [interprets § 1404(a) to achieve this result]; 1 Moore’s Federal Practice, § 0.145 [4. -5] at 1610-12. Either result is based on an extension of the principle of Goldlawr v. Heiman, 369 U.S. 463, 82 S.Ct. 913, 8 L.Ed.2d 39 (1962).
. 330 U.S. 501, 67 S.Ct. 839, 91 L.Ed. 1055 (1947).
. 454 U.S. 235, 102 S.Ct. 252, 70 L.Ed.2d 419 (1981).
. Fisher v. Agios Nicolaos V, 628 F.2d 308, 315 (5th Cir.1980), cert. denied, 454 U.S. 816, 102 S.Ct. 92, 70 L.Ed.2d 84 (1981), De Oliveira v. Delta Marine Drilling Co., 707 F.2d 843 (5th Cir.1983).
. 345 U.S. 571, 73 S.Ct. 921, 97 L.Ed. 1254 (1953).
. 398 U.S. 306, 90 S.Ct. 1731, 26 L.Ed.2d 252 (1970).
. De Oliveira v. Delta Marine Drilling Co., 707 F.2d 843, rehearing en banc denied, 715 F.2d 577 (5th Cir.1983).
. Jackson v. Jensen, 114 U.S. 355, 5 S.Ct. 860, 29 L.Ed. 152 (1885).
. Jackson v. Jensen, 114 U.S. at 367, 5 S.Ct. at 865, 29 L.Ed. at 156. See also Motor Distributors v. Olaf Pedersen’s Rederi A/S, 239 F.2d 463, 465 (5th Cir.1956); Poseidon Schiffahrt, G.M.B.H. v. M/S Netuno, 474 F.2d 203 (5th Cir.1973).
. 711 F.2d 1231 (5th Cir.1983).
. 239 F.2d 463 (5th Cir.1956).
. See Carbon Black Export v. The SS Monrosa, 254 F.2d 297, 300 (5th Cir.1958); Poseidon Schiffahrt, G.M.B.H. v. M/S Netuno, 474 F.2d 203 (5th Cir.1973).
. M/V Tel Aviv, 711 F.2d at 1236.
. See De Oliveira v. Delta Marine Drilling Co., 707 F.2d at 846-47.
. Gulf Oil Corporation v. Gilbert, supra note 1, 330 U.S. at 508, 67 S.Ct. at 843, 91 L.Ed.2d at 1062. Perusahaan Umum Listrik Negara v. M/V Tel Aviv, 711 F.2d 1231, 1235 (5th Cir.1983).
. Nicol v. Gulf Fleet Supply Vessels, Inc., 743 F.2d 289 (5th Cir.1984), quoting Smith Kline and French Laboratories, Ltd. v. Block, [1983] 2 All.E.R. 72, 74 (C.A.1982) (Denning, M.R.).
. See M/V Tel Aviv, supra note 21, 711 F.2d at 1238.
. 28 U.S.C. § 1404(a) provides:
For the convenience of parties and witnesses, in the interest of justice, a district court may transfer any civil action to any other district or division where it might have been brought.
. 28 U.S.C. § 1406(a) provides:
The district court of a district in which is filed a case laying venue in the wrong division or district shall dismiss, or if it be in the interest of justice, transfer such case to any district or division in which it could have been brought.
. Goldlawr, Inc. v. Heiman, 369 U.S. 463, 466, 82 S.Ct. 913, 916, 8 L.Ed.2d 39, 42 (1962). In Goldlawr the transferor court lacked jurisdiction and, in addition, was an improper venue.
. Dubin v. United States, 380 F.2d 813, 815 (5th Cir.1967), quoting Goldlawr, 369 U.S. at 466, 82 S.Ct. at 916, 8 L.Ed.2d at 42. See additional cases cited in Ellis v. Great Southwestern Corp., 646 F.2d 1099, 1105 (5th Cir.1981).
. Koehring Co. v. Hyde Construction Co., 324 F.2d 295, 297-98 (5th Cir.1963) and cases cited in Ellis, supra n. 27, 646 F.2d at 1106.
. Ellis, supra n. 27, 646 F.2d at 1106.
. Corke v. Sameiet M.S. Song of Norway, 572 F.2d 77, 80 & n. 9 (2d Cir.1978), quoting Volk Corp. v. Art-Pak Clip Art Service, 432 F.Supp. 1179, 1181 (S.D.N.Y.1977).
. Ellis, supra n. 27, 646 F.2d at 1107, citing Aguacate Consolidated Mines, Inc. v. Deeprock, Inc., 566 F.2d 523, 524-25 (5th Cir.1978).
. 363 U.S. 335, 80 S.Ct. 1084, 4 L.Ed.2d 1254 (1960).
. American Oil Company v. McMullin, 433 F.2d 1091, 1095 (10th Cir.1970). Compare Continental Grain Co. v. Barge F.B.L. — 585, 364 U.S. 19, 80 S.Ct. 1470, 4 L.Ed.2d 1540 (1960) (The plaintiff joined an in rem claim against a barge with a claim against the owners; the in rem claim could have been brought only where the barge was located. The court held that the in rem claim did not preclude transfer on the owner’s motion of the entire action to a more convenient forum in another state, where an in personam action "might have been brought” against the owner alone in the transferee forum); Van Dusen v. Barrack, 376 U.S. 612, 84 S.Ct. 805, 11 L.Ed.2d 945 (1964) (the plaintiff’s lack of qualification to sue in the transferee district as a matter of state law did not bar transfer).
. See 15 C. Wright, A. Miller and E. Cooper, Federal Practice and Procedure, § 3845 at 224, and cases cited therein.
. 15 C. Wright, A. Miller and E. Cooper, Federal Practice and Procedure § 3845 at 225, and cases cited therein.
. See 15 C. Wright, A. Miller and E. Cooper, Federal Practice and Procedure, § 3845 at 226, and cases cited therein.
. Hoffman v. Blaski, 363 U.S. 335, 80 S.Ct. 1084, 4 L.Ed.2d 1254 (1960).
. 363 U.S. at 344, 80 S.Ct. at 1090, 4 L.Ed.2d at 1262 (1960).
. See Korbel, The Law of Federal Venue and Choice of the Most Convenient Forum, 15 Rutgers L.Rev. 607 (1961); Masington, Venue in the Federal Courts — The Problem of the Inconvenient Forum, 15 U.Miami L.Rev. 237 (1961); Note, 46 Cornell L.Q. 318 (1961).
. See A.J. Industries v. U.S. Dist. Court for the Cent. Dist. of Calif., 503 F.2d 384, 387-89 (9th Cir.1974); Schertenleib v. Traum, 589 F.2d 1156, 1163 (2d Cir.1978).
. Insurance Company of North America v. Ozean/Stinnes-Linien and the M/V Wurttemberg, 367 F.2d 224 (5th Cir.1966). Compare Bailey v. Dolphin International, Inc., 697 F.2d 1268, 1273 n. 16 (5th Cir.1983) (distinguishing the earlier decision).
. Id. 367 F.2d at 227.
. See supra page 267.
. 367 F.2d 224 (5th Cir.1966).
