The opinion of the court was delivered by: KRAFT
This action in admiralty presents a claim for damages by libellant in her own right, and as personal representative and administratrix of the estate of Georgios Tsangarakis, deceased, arising from the alleged wrongful death of the decedent at sea on or about November 16, 1957, while serving as a member of the crew of the Liberian steamship Nikolos.
The case is now before us on exceptions to the amended libel.
Respondents' first point is that the conflicting legal theories of the first and second causes of action fail to meet the requirements of proper pleading in admiralty.
The first cause of action is laid against S. G. Embiricos, Ltd., the operating agent of the vessel, and F. A. Klidonieos, an alleged co-owner of the ship. The amended libel alleges that S. G. Embiricos, Ltd., 'was and now is a foreign corporation, organized and existing under the laws of Great Britain, was domiciled therein, and doing business in the United States;' and that F. A. Klidonieos was and still is a citizen of the Kingdom of Great Britain. It is asserted that the proper law of tort herein applicable is that of the Kingdom of Great Britain, 'with whom the respondent herein is more genuinely and properly linked than any other jurisdiction.' Libellant further invokes the Death on the High Seas Act. 46 U.S.C.A. §§ 761-765.
The second cause of action is expressly directed to Panama Steamship Company, Ltd., the other alleged co-owner of the ship. It is averred that Panama 'was and still is a foreign corporation, organized and existing pursuant to the laws of the Republic of Liberia, and doing business through its agents in the United States.' It is further alleged that Panama's controlling stock was owned and held by citizens and nationals of Great Britain, and that its officers and directors were citizens and residents thereof. Libellant bases this cause of action on the law of Great Britain.
Respondents contend that libellant must make her choice of the substantive law under which she seeks recovery in the first cause of action. While libellant, of course, may not effect a double recovery, we know of no rule which requires her to make an election at this time. To the contrary, she may plead alternative, even inconsistent, theories of recovery. Such is the modern rule both at law and in admiralty, as pointed out in Benedict on Admiralty (6th Ed.) § 259:
'In suits in personam, the libellant may join in the same libel any number of causes of action, whether of contract or tort, between the same parties. This is another advantage of the admiralty course of proceeding, which the different forms of action, the different forms of pleas, the different modes of trial and the different kinds of judgments and executions in common law proceedings, all having their technical niceties, have rendered impracticable in common law courts. However, progressive reforms in common law procedure have done away with the technical limitations of this character in many courts. See, for example, Federal Civil Rule 8(f) stating that all pleadings shall be so construed as to do substantial justice. Civil Rule permits two or more statements of a claim alternatively or hypothetically, either in one count or in separate counts; and the statement of as many separate claims as the party has regardless of consistency. The same is true in admiralty, save for the requirement that all the claims must be of a maritime nature.'
Libellant's method of pleading is both reasonable and proper in light of the present uncertainty as to whether the alleged tortious acts occurred within or without a marine league from the shore of Florida, the controlling consideration under the Death on the High Seas Act.
The original libel based the right of recovery on the general maritime law of the United States 'and all statutes amendatory thereof,' including the Jones Act, 46 U.S.C.A. § 688. The amended libel, filed December 9, 1960, invokes for the first time the law of Great Britain. Respondents contend that the claims under British law are barred by lapse of time. Foreign law is a fact which must be pleaded and proved, and of which we may not take judicial notice. As the Court said in Liverpool & Great Western Steam Co. v. Phenix Ins. Co., 1889, 129 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.' ...