U.S. 397, 445, 9 S. Ct. 469, 473, 32 L. Ed. 788:
'The law of Great Britain since the declaration of independence is the law of a foreign country, and, like any other foreign law, is matter of fact, which the courts of this country cannot be presumed to be acquainted with, or to have judicial knowledge of, unless it is pleaded and proved.
'The rule that the courts of one country cannot take cognizance of the law of another without plea and proof has been constantly maintained, at law and in equity, in England and America.' (Citing cases.)
Respondents' next point is that the case should be dismissed on the doctrine of forum non conveniens. We share the view of the learned Court in Conte v. Flota Mercante Del Estado, 2 Cir., 1960, 277 F.2d 664, 667:
'The question raised is an important one, as to which an able commentator chides us, 'No rules to guide discretion have been formulated, and the cases, although the better ones point to and assist in the definition of standards, have not been lacking in confusion.' Bickel, Forum Non-Conveniens in Admiralty, 35 Cornell L.Q. 12, 27 (1949).'
Libellant is a citizen of Greece, as was her decedent. The Nikolos carried the Liberian flag. She was owned, it is alleged, by a British citizen and a Liberian corporation (British owned), and was operated by a British corporation. The witnesses to the tortious acts would probably be Greeks. Respondents contend that these facts, among others, require the action to be tried in the courts of Greece. The question calls for the exercise of discretion, and is certainly not free from difficulty. After most careful consideration, we think that jurisdiction must be retained. The facts, in relevant regard, closely parallel those in Kontos v. The S.S. Sophie C, D.C.E.D.Pa.1960, 184 F.Supp. 835, as appears from the second paragraph of that opinion (at page 836):
'The set of facts, so far as we have them, is a law teacher's delight for an examination problem. The libelants are Greeks. They have left the United States and are presently in Greece. The men shipped on the Sophie C., which carries the Liberian flag. Whether they signed articles or not is uncertain. The respondents say that the Sophie C. is owned by a British corporation and that the sole shareholder is a citizen of the Argentine Republic; the libelants say that they lack sufficient knowledge to form a belief as to the truth of these averments. The Court does not think the last point is of great importance anyhow, certainly not at this stage. The acts complained of by Kontos took place in Japan where it is also alleged that insufficient medical treatment was provided.'
If anything, the case before us is a stronger one for retention of jurisdiction. Here, as in Kontos, a vital factor is that we do not know 'whether a Greek court would take jurisdiction over matters concerning a Liberian ship.' At page 837. We think Judge Goodrich's reasoning in Kontos is equally apt here, and is decisive of the issue (at pages 837-838):
'The problem is a difficult one. The Court thinks that the weight of argument is against sending these libelants elsewhere. * * *
'It is true that if the case is tried in this country there will no doubt have to be interpretations of depositions taken in Greek and translated into English. But trial by deposition might well be necessary if the case is tried in Greece because if these witnesses are seamen there is no telling where they will be at any particular time. * * *
'It should be remembered that the selection of the forum is in the first instance a matter where the plaintiff's choice is to be made and where, other things being equal, or nearly equal, it should control. If there is difficulty in proving the case and the libelants are unable to support their claim by adequate testimony, they will fail. That burden is on them. The conclusion, therefore, is that the balance of convenience indicates that the case should be retained here.'
Since libellant's counsel at oral argument withdrew the third cause of action, it is unnecessary to consider respondents' exceptions thereto.
The only claim against respondent Texas Transport & Terminal Co., Inc., is under the third cause of action. Since that cause of action has been withdrawn, Texas' exceptions must be sustained and the amended libel dismissed as to it.
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