Fitzgerald v. Texaco, Inc.

521 F.2d 448, 21 Fed. R. Serv. 2d 383, 1975 U.S. App. LEXIS 14012, 1975 WL 61385

• Court: Court of Appeals for the Second Circuit
• Decided: June 25, 1975
• Docket: Nos. 195, 205, Dockets 74-1958, 74-1468
• Status: Published

Opinions

ROBERT P. ANDERSON, Circuit Judge:

On January 12, 1971, the M/V Brandenburg, a German vessel, struck the wreckage of the S/T Texaco Caribbean, a Panamanian vessel, owned by Texaco Panama, Inc. (Texpan), a foreign subsidiary of Texaco, Inc. (Texaco), in the Dover Straits 12 miles from the coast of England, where the Texaco Caribbean lay submerged as a result of a collision the previous day with the M/V Paracas, a Peruvian vessel. Suits were brought in the Southern District of New York by Hapag-Lloyd, A.G., and Stork Amsterdam N.V. Industrias Lácteas Dominica-nas, S.A., et al., foreign corporations, against Texaco under general maritime law for the loss of the Brandenburg and her cargo, respectively, and by 12 estates of deceased German seamen, through the Public Administrator of the County of New York, against Texaco and Texpan under the general maritime law and the Death on the High Seas Act, 46 U.S.C. § 761 et seq. The claims were based on defendants’ alleged failure properly to mark the wreckage of the Texaco Caribbean.

The defendants filed a motion to dismiss these actions which was granted by the district court under the doctrine of forum non conveniens upon the recommendation of the magistrate to whom the motion had been referred. The dismissal was subject, however, to the conditions that the defendants submit to the jurisdiction of the courts in England, where Texpan and several of the present plaintiffs, among others, are parties in pending suits arising from the same series of events, and that the defendants waive any defense of a statute of limitations which they might have there.¹

The evidentiary material, submitted by the parties, disclosed the following undisputed facts. Texaco Overseas Tankships Limited (TOT), a British subsidiary of Texaco which managed the Texaco Caribbean for Texpan, notified Trinity House, a British corporation with the statutory duty of locating and marking wrecks off the coast of England, of the collision between the Paracas and the Texaco Caribbean, while the stern section of the latter was then still afloat, and requested that action be taken to mark the area. In response thereto, Trinity House dispatched its ship Siren to the scene, but by the time she arrived, the stern section of the Texaco Caribbean had sunk. The Siren mistakenly moored at the edge of an oil slick which she assumed indicated the location of the wreck and warned other vessels to avoid that area. Later, members of the crews of two British fishing vessels saw the Brandenburg run into the wreck of the Texaco Caribbean which was actually located about a mile from the Siren’s anchored position. This occurred about 0730 on January 12, 1971. The Brandenburg sank immediately.

Prospective witnesses, such as employees of TOT, surviving crew members of the Texaco Caribbean, who are Italian nationals, employees of Trinity House, and the English crew members of the fishing vessels, all reside in or near England.

The plaintiffs had served numerous interrogatories and requests for the inspection of certain documents upon Texpan’s counsel before responding to the motion to dismiss, but the district court issued a protective order limiting discovery to what in its opinion might disclose the location of important sources of proof.

In response to the interrogatories allowed, Texpan stated that TOT had exclusive authority under the Ship Management Agreement to take all necessary action to mark the wreck of the Texaco Caribbean, and that no one residing in the United States had been consulted about the operation.

Plaintiffs, nevertheless, still claimed that Texaco had supervised the search operation from New York, and many of the witnesses and documents, which were essential to the proof at the trial, were there; and that, therefore, trial in New York would best serve the convenience of the parties. The evidentiary material offered in support of their contention was, however, of insubstantial value. It consisted of a copy of an interoffice memorandum written by an employee of Smit-Tak, a Dutch company operating a fleet of wreck-search vessels, which stated that Smit-Tak had offered its services to TOT on the day of the Paracas collision, but that TOT had replied that it could not hire Smit-Tak without authorization from Texaco’s New York office. Plaintiffs also served a notice to admit that a Texpan official had signed a letter in 1967 (four years before the occurrences in the present case), written on Texpan stationery bearing a New York address, and further proposed to take depositions of Texpan officials regarding matters which had already been covered in the interrogatories and affidavits but the district court issued a protective order barring both thé notice to admit and the additional discovery. This appeal followed.

The sole issue presently before this court is whether or not the district court abused its discretion in granting the motion to dismiss the action on the ground of forum non conveniens.

An action may properly be dismissed under the doctrine of forum non conveniens when the convenience of the parties and the ends of justice weigh heavily against the retention of jurisdiction. Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 507-8, 67 S.Ct. 839, 91 L.Ed. 1055 (1947); Vanity Fair Mills v. T. Eaton Co., 234 F.2d 633, 645-6 (2 Cir.), cert. denied, 352 U.S. 871, 77 S.Ct. 96, 1 L.Ed.2d 76 (1956). Another factor to be considered is the public interest which includes a limitation on the use of a local forum for resolution of controversies which lack significant local contacts, especially when trial of the action would create administrative and legal problems for the courts. Gulf Oil Corp. v. Gilbert, supra, 330 U.S. at 508, 67 S.Ct. 839. This is not a case where the plaintiffs or any of them has a “home jurisdiction” in the Southern District of New York. Roster v. Lumbermens Mutual Co., 330 U.S. 518, 524, 67 S.Ct. 828, 91 L.Ed. 1067 (1947). Although plaintiffs should rarely be deprived of the advantages of their chosen forums, “the doctrine leaves much to the discretion of the court,”² whose decision, absent a clear showing of abuse of discretion, may not be disturbed. Fitzgerald v. Westland Marine Corp., 369 F.2d 499, 502 (2 Cir. 1966).

Among the major factors bearing on the convenience of the parties are ease of access to sources of proof, the availability of compulsory process and the cost of obtaining willing witnesses. Gulf Oil Corp. v. Gilbert, supra, 330 U.S. at 508, 67 S.Ct. 839, Fitzgerald v. Westland Marine Corp., supra, at 501.

Even on the plaintiffs’ statement of the facts, the convenience to all parties of trying these cases in the English courts and the vast inconvenience to all of trying the cases in New York, overwhelmingly outweighs the temporary convenience to the plaintiffs of getting access to evidentiary material in Texaco’s possession in New York.³

What the plaintiffs want to prove is that TOT could make no move with regard to buoying the wreck of the Texaco Caribbean or otherwise take steps to warn mariners of the obstruction without orders from Texaco in New York. But TOT is in England and its officers and records are there. Moreover, Texaco does business in England. The plaintiffs should find their best proof right there, not only with regard to Texaco but also as to any liability on the part of Texpan. In fact, the plaintiffs’ cases on liability will depend in large measure upon the knowledge and activities of such witnesses as the employees of TOT and Trinity House, who are not parties to this litigation, but who directly participated in the events which gave rise to it. The United States District Court in New York, however, has no power to subpoena any of these witnesses.⁴ It is unlikely that many would be willing to travel to New York to testify; and the cost, in any event, would be prohibitively great. Those witnesses who reside in England are subject to the compulsory process of her courts; and the others, if willing to testify, could do so there at reasonable expense.

The plaintiffs, moreover, will not be significantly inconvenienced by dismissal. The district court granted the motion on the express condition that Texaco submit to the jurisdiction of the courts in England where, upon court order, personnel will be available to testify and necessary documents may be produced. As the real parties in interest are either German citizens and residents or foreign corporations, it appears that a trial in England, where several are already parties to related suits, would be considerably less burdensome than a trial in New York. The balance of convenience under these circumstances clearly tips in favor of dismissal.

Liability for a collision on the high seas between vessels flying different flags is determined according to the general maritime law as interpreted by the courts of the forum in which the action proceeds. The Scotland, 105 U.S. 24, 29, 26 L.Ed. 1001 (1881); The Belgenland, 114 U.S. 335, 369, 5 S.Ct. 860, 29 L.Ed. 152 (1885); Kloeckner Reederei v. A/S Hakedal, 210 F.2d 754, 756 (2 Cir. 1954), cert. dism., 348 U.S. 801, 75 S.Ct. 17, 99 L.Ed. 633 (1955); Pacific Vegetable Oil Corp. v. S/S Shalom, 257 F.Supp. 944, 946 (S.D.N.Y.1966). England apparently accepts this doctrine. The Buenos Aires, 5 F.2d 425, 437 (2 Cir. 1924).⁵ Plaintiffs claim that the difference between the interpretation by the English and American courts of general maritime law might adversely affect their chances of prevailing on the merits, and that “the ends of justice” require that they be allowed to retain the advantageous interpretations of the law made by their chosen forum, even if, under all the other criteria, that forum is an inconvenient one.

Plaintiffs cite The Utopia, 18 A.C. 492 (1892), and The Douglas, 7 P.D. 151 (1882), as authority for the proposition that, under general maritime law as applied by the courts in England, the duty of an owner ceases as soon as he notifies a governmental agency of the wrecking of his vessel and requests that the government, or its agency, take action to locate and mark the wreck. As a result, plaintiffs argue that defendants would be entitled to judgment as matter of law in England merely because TOT had asked Trinity House to locate and mark the wreck of the Texaco Caribbean; whereas they claim in the United States the critical issue is whether an owner took all reasonable precautions to prevent injury to another.⁶

A district court has discretion to dismiss an action under the doctrine of forum non conveniens, however, even though the law applicable in the alternative forum may be less favorable to the plaintiff’s chance of recovery. Canada Malting Co., Ltd. v. Paterson Steamships, 285 U.S. 413, 418-20, 52 S.Ct. 413, 76 L.Ed. 837 (1932). A contrary holding would emasculate the doctrine, for a plaintiff rarely chooses to bring an action in a forum, especially a foreign one, where he is less likely to recover. But the issue remains one of balancing the relevant factors, including the choice of law.

Any difference between the general maritime law as interpreted and applied in the United States and England would affect plaintiffs’ rights of recovery only if it could be shown that TOT had negligently failed to take some action which would have prevented the Brandenburg from running into the wreck of the Texaco Caribbean after TOT had notified Trinity House of the collision.

It is undisputed that defendants would have claims over against the owners of the Paracas and Trinity House, presently parties to the suits in England, for any recovery which plaintiffs may secure in those actions. It is also undisputed that these third parties are beyond the jurisdiction of the United States District Court. The inability to implead other parties directly involved in the controversy is a factor which weighs against the retention of jurisdiction in the Southern District of New York. Gulf Oil Corp. v. Gilbert, supra, 330 U.S. at 511, 67 S.Ct. 839; Fitzgerald v. West-land Marine Corp., supra, 369 F.2d at 501-02.

And although the occurrence took place on the high seas, over which all nations share suzerainty, England clearly has the more direct interest in promulgating and enforcing rules for the safe passage of traffic in the English Channel.

Weighing the minimal possibility that plaintiffs might be adversely affected by dismissal, against the clear prejudice which defendants would suffer if jurisdiction were retained, together with considerations of the public interest, and the factors of convenience, we are satisfied that the district court did not abuse its discretion in this case.

It is finally argued that the English courts may choose to apply Lord Campbell’s Act rather than the Death on the High Seas Act and that dismissal was, therefore, improper because it might deny relief to certain claimants who would otherwise have a right to recover.

Under § 1 of the Death on the High Seas Act, 46 U.S.C. § 761, a suit for damages for wrongful death may be maintained “for the exclusive benefit of the decedent’s wife, husband, parent, child, or dependent relative.” Under Lord Campbell’s Act, on the other hand, “dependent relatives” are not included. 28 Halsbury’s Laws of England (3d ed.) 37. But the likelihood that there are any beneficial claimants who would have been entitled to recover in the district court but who will not qualify for recovery in the English courts is conjectural at best.

The broad principles of choice of law established for Jones Act cases in Laurit-zen v. Larsen, 345 U.S. 571, 73 S.Ct. 921, 97 L.Ed. 1254 (1953), were declared equally applicable to cases arising under the general maritime law in Romero v. International Operating Co., 358 U.S. 354, 381-4, 79 S.Ct. 468, 3 L.Ed.2d 368 (1959), and have been applied to suits brought under the Death on the High Seas Act. Symonette Shipyards Ltd. v. Clark, 365 F.2d 464 (5 Cir. 1966).

The governing principle winnowed from these cases is that the plaintiffs can recover under the Death on the High Seas Act only if they are able to establish some significant national contacts warranting the application of the statute to non-resident aliens. Lauritzen v. Larsen, supra, 345 U.S. at 582-592, 73 S.Ct. 921. The only American contact in this case is Texaco’s alleged supervision of the search.

And, although plaintiffs have failed to establish by competent authority the law of the foreign forum, it appears that Lord Campbell’s Act applies only when the parties or vessels are British, and, that the English courts otherwise apply the law of the forum with the most significant contacts. 7 Halsbury’s Laws of England (3d ed.) 88.

The judgment of the district court is affirmed.

1 . It is undisputed that the following legal actions are pending in England: (1) owners of the Brandenburg’s cargo against the Paracas, Texaco Caribbean, and Trinity House; (2) Texaco Caribbean against the Paracas; (3) the Paracas against Texaco Caribbean; and (4) the Brandenburg against Trinity House.

There are also pending in the United States District Court for the District of Delaware 12 suits, similar to those brought in this court, against Texaco and Texpan by the heirs and representatives of the deceased German seamen.

2 . Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 508, 67 S.Ct. 839, 843, 91 L.Ed. 1055 (1947).

3 . Plaintiffs argue that the district court prevented them from adequately demonstrating that Texaco had directed the search. Because we hold that the convenience of the parties favors dismissal under either version of the facts, plaintiffs were not prejudiced by the limitations imposed by the district court upon the scope of discovery.

The grant and nature of protection with respect to discovery is within the discretion of the trial court, Galella v. Onassis, 487 F.2d 986, 997 (2 Cir. 1973), and we find that the district court did not abuse its discretion by issuing the protective orders in this case. The general standard is that parties are entitled to obtain discovery regarding any matter which is relevant to the subject matter involved in the pending action. F.R.Civ.P. 26(b)(1). The discovery and disclosure at issue sought the substance of all reports made by employees of TOT, and all requests made by Texpan to locate or mark the wreck; also requests were made for copies of all documents prepared by any survivors of the Texaco Caribbean, and for copies of reports upon any investigation “into any of the circumstances relevant to the collision.” But a motion to dismiss for forum non conveniens does not call for a detailed development of the entire case; rather discovery is limited to the location of important sources of proof. It is undisputed that the proposed depositions dealt with topics for which full information was already available. Nor did the district court in this case abuse its discretion, on this motion to dismiss for forum non conveniens, in failing to require detailed disclosure by the defendants of the names of their proposed witnesses and the substance of their testimony.

4 . The only prospective witnesses who reside in the United States, and who are not parties, are the members of the crew of the Leslie Lykes, most of whom reside in Florida, and who observed the Paracas collision and could testify that the stern section of the Texaco Caribbean remained afloat for several hours and that her wreckage, therefore, could have been properly marked by the fully-equipped Smit-Tak vessel patrolling in the area. These crew members, except for the unlikely chance that the Leslie Lykes were to stop in New York, which it has not done, however, since 1966, would not be subject to subpoena in New York and their testimony would have to be taken by depositions. The surviving crew members of the Texaco Caribbean, who reside in Italy, presumably could provide similar testimony and many of these witnesses will be present in England in connection with the trials of the related suits there pending.

5 . “The high seas ... are subject to the jurisdiction of all countries . . . The question of negligence in a collision raised in a suit in this country is to be tried, not indeed by the common law of England; but by the maritime law which is part of the common law of England as administered in this country.” Chartered Mercantile Bank of India v. Netherlands India Steam Navigation Co., 10 Q.B.D. 521, 537 (1883). See, 7 Halsbury’s Laws of England (3d ed.) 87-88.

6 . The district court made no finding as to whether the duty of an owner to mark the wreckage of its vessel does in fact differ under general maritime law as presently applied by the English and American courts. The plaintiffs cited The Utopia and The Douglas and their own interpretations of them as sole authority for the English law. But the collisions at issue in The Utopia and The Douglas occurred after the port authority had assumed complete physical control of the wrecks and both cases clearly state that, until the port authority had assumed physical control, the owners had a duty to take all reasonable steps to protect other vessels from running afoul of the wrecks.

“The result of these authorities [citing The Douglas among others] may be thus expressed.

The owner of a ship sunk whether by his default or not . . . has not, if he abandon the possession and control of her, any responsibility either to remove her or to protect other vessels from coming into collision with her. It is equally true that so long as, and so far as, possession, management, and control of the wreck be not abandoned or properly transferred, there remains on the owners an obligation in regard to the protection of other vessels from receiving injury from her. But in order to fix the owners of a wreck with liability two things must be shown, first, that in regard to the particular matters in respect of which default is alleged, the control of the vessel is in them, that is to say, has not been abandoned, or legitimately transferred, and, secondly, that they have in the discharge of their legal duty been guilty of wilful misconduct or neglect.” The Utopia, 18 A.C. 492, 498 (1892).

Although it may be possible to argue that mere notice to the port authority constituted transfer of control, sufficient to relieve the owner of liability, the explicit rationale for the rule given by the court in The Utopia was that “it would be dangerous if an owner of a wreck were compelled, in order to avoid a personal responsibility, to interfere with the action taken by a public authority.” 18 A.C. at 499. This obviously assumes that mere notice is not enough and an owner is only relieved of responsibility after the public authority has taken action to take over the marking of the wreck.

The courts in the United States, several of which have cited The Douglas and The Utopia with approval, have similarly recognized that an owner’s duty to mark a wreck ceases once the Coast Guard has undertaken the task. The Plymouth, 225 F. 483 (2 Cir.), cert. denied, 241 U.S. 675, 36 S.Ct. 725, 60 L.Ed. 1232 (1915); New York Marine Co. v. Mulligan, 31 F.2d 532 (2 Cir. 1927); Berwind-White Coal Co. v. Pitney, 187 F.2d 665 (2 Cir. 1951); Morania Barge No. 140, Inc. v. M. & J. Tracy Inc., 312 F.2d 78 (2 Cir. 1962).