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August 3, 1976

AMELIA ZAMORA DE MATEOS, Administratrix of the Estate of THEODORE REYES, Deceased

The opinion of the court was delivered by: FOGEL


 In its present procedural posture, the matter is before us as a case stated for determination of the issue of jurisdiction. The facts adduced by the parties during discovery establish manifold and significant contacts with the Republic of Panama. Thus we are confronted at this juncture with the following two issues: First : To what extent should a judgment of the Supreme Court of Justice of Panama, which arises out of the same incident and involves the same parties, be determined by us to be final and binding on the basis of the doctrine of comity between nations? Second : Given the factual background of this matter, are there such sufficient contacts with the United States as to permit application of the maritime law of this country?

 We have determined, for the reasons stated infra, that this matter should be resolved on the second of the grounds before us for decision; i.e., the appropriate choice of controlling law. Our determination on this ground therefore obviates the need to venture into the factual and legal morass presented by the first issue. We hold that the facts of the instant case mandate application of the law of Panama; accordingly, we will decline to take jurisdiction over the matter, and will dismiss the action on the ground of forum non conveniens, based upon the virtually exclusive contacts between the Republic of Panama and the subjects and subject matter of this lawsuit.

 Our disposition of this action through the avenue of "choice of law" negates consideration of the doctrine of comity, and the recognition to be afforded the judgment of a foreign nation. Courts have too often been trapped in that thicket, and have emerged tattered and bloodied; the shredded fabric of decisional law with respect to the interpretation of the standards which govern the application of the doctrine of comity, and the rationale behind those standards in this area are, at best, studded with the thorns of inconsistency.

 Because our analysis of the choice of law question convinces us that Panamanian law should be applied, and because that determination must lead to dismissal of the action on the ground of forum non conveniens, we will not decide the issue of comity; such a decision would, in the context of the matter before us be pure, or rather, impure dictum. *fn1" Our reasons follow:


 The relevant facts, including those stipulated by the parties, are as follows:

 Plaintiff's decedent, Theodore Reyes, was a citizen and a resident of the Republic of Panama. From approximately May, 1964, until his death on February 24, 1970, he was employed as a seaman by defendant Texpan. During the initial period of his employment, he served aboard the SS Texaco London; he was then transferred to the SS Texaco Kenya in July, 1969, and at the time of his death had attained the status of able-bodied seaman aboard that vessel. The Texaco Kenya is owned by defendant, a Panamanian corporation, purportedly with its principal place of business in Panama City; during the period relevant to this litigation, the vessel was registered in Liberia, and carried that nation's flag. *fn2"

 While aboard the Texaco Kenya, Reyes was employed pursuant to an employment contract executed with defendant in Panama in March, 1969. At the time he signed the employment contract, Reyes agreed to be bound by the "Conditions of Employment" which had been drafted by Texpan for the purpose of governing its relations with Panamanian seamen in its employ. *fn3" Those conditions unequivocally provide for application of Panamanian law to disputes arising out of his status as an employee.

 Texpan, incorporated under the laws of Panama, is a wholly-owned subsidiary of Texaco, Inc., a Delaware corporation, with its principal place of business in New York City. The exact nature of the relationship between Texaco, Inc. and Texpan is a major point of dispute between the parties; plaintiff claims that Texpan is a mere facade to enable Texaco, Inc. to conduct its shipping affairs beyond the reach of the maritime law of the United States, while defendant Texpan maintains that it is a viable entity, separate and apart from its parent. We need not decide the full extent of the interrelationship between Texpan and Texaco; it is absolutely clear from the record before us, however, that Texpan is a viable and separate corporate entity engaged in the dual enterprise of (a) international shipping, and (2) marketing of petroleum products in the Republic of Panama.

 B. The Circumstances Surrounding the Death of Theodore Reyes

 While the precise nature of the events leading to the illness and death of plaintiff's decedent are in dispute, the record before us establishes the following critical facts:

 During the period prior to, and encompassing the illness and death of Reyes, the Texaco Kenya was engaged in short run voyages in the Caribbean. On February 18, 1970, the vessel was docked at Puerto Cortes, Honduras, and was scheduled to depart for Puerto Limon, Costa Rica on the following morning. Reyes was on shore leave on February 4th, and failed to appear for his scheduled watch that evening; while he did return before the vessel departed for Puerto Limon on February 19th, he did not arrive at his maneuvering post at the time of castoff, nor did he stand his appointed watch that morning. The cause of this breach of duty is in dispute; defendant claims that Reyes returned from shore leave too intoxicated to stand watch, while plaintiff alleges that Reyes was suffering the onset of his subsequently fatal illness.

 Whatever the cause of Reyes' incapacity on February 18th and 19th, the record is clear that by February 20th, he had become ill. On that afternoon, he reported to the Master on the bridge that he was suffering from headaches and weakness in his legs; the Master ordered Reyes to return to his quarters. There was no medical officer on board the Texaco Kenya, but Reyes was visited in his cabin by the First Officer, and given aspirin tablets and vitamins. However, during the course of the four-day voyage to Puerto Limon, Reyes' condition continued to deteriorate; he gradually lost his ability to walk, and at some point on February 21st or 22nd, he was taken to the ship's hospital in order to enable the ship's officer to monitor his condition on an ongoing basis. The vessel was not diverted from her scheduled route to Puerto Limon, nor was immediate medical assistance requested by radio; however, on February 22nd, the day before arrival in Puerto Limon, the Master of the vessel cabled ahead to request medical assistance immediately upon arrival at that destination.

 Reyes was examined by a physician on board the Texaco Kenya while anchored in Puerto Limon harbor on the morning of February 23rd; as a result of that examination he was transferred immediately to a hospital, pursuant to the decision of the examining physician. At that juncture, plaintiff's decedent had totally lost the use of both of his legs, and was practically unconscious when taken ashore to Tony Facio Hospital. He died the following morning.

 C. The Suit in Panama

 Following Reyes' death, suit was instituted in the Third Labor Court of Panama by Amelia Zamora De Mateos, (plaintiff in this action), Rita Zamora, and Margarita Atares; they are, respectively, the mother, grandmother, and sister of the decedent. Texpan was the defendant in that action. Under Panamanian law, the beneficiaries of a deceased seaman may recover from the employer if the death was caused by a "professional risk". *fn4" A "professional risk" is one to which workmen are ...

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