Appeal from the United States District Court for the Eastern District of Pennsylvania.
Gibbons, Maris and Hunter, Circuit Judges.
Amelia Zamora DeMateos, Administratrix of the Estate of her son, Theodore Reyes, a Panamanian seaman, appeals from an order of the District Court dismissing her suit against Texaco Panama, Inc. (Texpan), a Panamanian corporation, because the Eastern District of Pennsylvania is an inconvenient forum for the litigation. Her suit was brought under general maritime law, the Jones Act, 46 U.S.C. § 688 and the Death on the High Seas Act, 46 U.S.C. §§ 761 et seq. Reyes was a seaman aboard the S.S. Texaco Kenya, owned by Texpan, on a voyage between Honduras and Costa Rica when on February 18, 1970, he became ill. On arrival of the vessel at Puerto Limon, Costa Rica on February 23rd he was transferred to a hospital where he died the following morning. His mother, the plaintiff, alleges that his death resulted from the failure of Texpan's agents in charge of its vessel to give him prompt and adequate medical attention. She charges both negligence and unseaworthiness, consisting of lack of proper medical facilities. She alleges, moreover, that the illness which resulted in her son's death was caused by an unseaworthy condition on the vessel which permitted him to inhale toxic fumes. We conclude that the District Court did not abuse its discretion in dismissing the complaint, and we affirm.
The S.S. Texaco Kenya is a vessel of Liberian registry, owned by Texpan, a Panamanian corporation which has a principal place of business in Panama City. The corporation not only owns vessels but also engages in the business of marketing petroleum products in Panama. Reyes signed on as a crew member of the Texaco Kenya in March, 1969, in Panama, where he executed an employment contract incorporating standard "Conditions of Employment" which had been approved by the Labor Ministry of Panama for Panamanian seamen. Those conditions provide for the application of Panamanian law to disputes arising out of Reyes' status as an employee. Prior to and during the voyage on which Reyes became ill, the Texaco Kenya was employed in short run voyages in the Caribbean, none of which was within the territorial waters of the United States. While Texpan owns the Texaco Kenya, the vessel is managed, pursuant to a ship management agreement, by Texaco Overseas Tankship Limited (TOT), a United Kingdom corporation with its principal place of business in London. TOT is engaged in international shipping. It is a wholly owned subsidiary of Texaco Limited, a United Kingdom corporation with its principal place of business in London. Texaco Limited, in turn, is wholly owned by Texas Operations (Europe) Ltd. (TOEL), a Delaware corporation. Texaco, Inc., a Delaware corporation the stock of which is listed on the New York, Midwest, London, Toronto, Basle, Geneva and Zurich stock exchanges, owns all the stock of TOEL and of Texpan.
Following Reyes' death on September 16, 1971, Mrs. DeMateos and others instituted suit in the Third Labor Court of Panama against Texpan. Under Panamanian law, designated beneficiaries of a deceased seaman may recover from an employer for death caused by a "professional risk" to which the employee was exposed by reason of the work he performed for his employer. On August 16, 1972, the Third Labor Court rendered judgment for the plaintiffs. On appeal to the Superior Court of Panama the judgment was affirmed. Texpan then appealed to the Supreme Court of Justice of Panama, which reversed on June 6, 1973, holding that the plaintiffs had failed to carry the burden of establishing that Reyes' death was caused by a "professional risk". Texpan has at all times disputed the claim that Reyes' illness and death had anything to do with his service on the Texaco Kenya. The Panamanian law appears to be in the nature of a workmen's compensation statute imposing liability without fault for death arising from "professional risk," but imposing on the plaintiff the burden of establishing that the death arose out of an employment risk. The June 6, 1973 judgment of the Supreme Court of Justice of Panama in favor of Texpan is a final judgment of a sovereign state having in personam jurisdiction of the parties.
Before the Third Labor Court of Panama rendered its decision, but while the case was pending before it, Mrs. DeMateos, on February 23, 1972, filed a complaint against Texaco, Inc. and Texpan in the Eastern District of Pennsylvania. Service of process was made in personam on Texaco, Inc., but not on Texpan. Texaco, Inc. moved for summary judgment, which was initially denied. No effort was made to serve Texpan in personam under Pennsylvania's long arm statute, 42 Pa. C.S.A. § 8301 et seq. and Fed. R. Civ. P. 4(e), (i). However, in June of 1974, apparently following an attachment of a Texpan vessel other than the Texaco Kenya, pursuant to Pennsylvania's Foreign Attachment Rules, 42 Pa. R.C.P. No. 1251 et seq., 42 Pa. C.S.A., the parties entered into a stipulation by virtue of which the action against Texaco, Inc. was dismissed with prejudice and counsel accepted service on behalf of Texpan "as if a vessel of [Texpan] had been legally attached in the Eastern District of Pennsylvania." That stipulation antedated this court's opinions in Jonnet v. Dollar Savings Bank, 530 F.2d 1123, 1130-1143 (3d Cir. 1976) and U.S. Industries v. Gregg, 540 F.2d 142 (3d Cir. 1976), cert. denied, 433 U.S. 908, 97 S. Ct. 2972, 53 L. Ed. 2d 1091, 45 U.S.L.W. 3838 (1977), as well as the Supreme Court's endorsement in Shaffer v. Heitner, 433 U.S. 186, 97 S. Ct. 2569, 53 L. Ed. 2d 683, 45 U.S.L.W. 4849 (1977), of our view that quasi-in-rem jurisdiction to adjudicate is subject to the same due process limitations as is in personam jurisdiction. Thus the case against Texpan was before the court in the posture of an appearance, following a foreign attachment, with no objection made to the court's process.
After extended discovery, the parties submitted the case to the District Court as a case stated, consisting of the completed discovery and submission by counsel of certain undisputed facts, for the decision of Texpan's contentions, (1) that the Panama judgment in its favor should, under principles of international law, be afforded res judicata effect as a matter of comity, and (2) that even if that judgment was not dispositive, American maritime law was inapplicable to the transaction, and the case should be dismissed. The District Court, in a thorough and well-reasoned opinion, concluded that American maritime law should not apply and that the case should be dismissed in this inconvenient forum.*fn1 It did not reach the first issue tendered by Texpan because it concluded that the parties had not supplied it with sufficient information to make such a determination.
The doctrine of forum non conveniens presupposes the existence of at least two forums in which the defendant is amenable to process. A stipulation made Texpan amenable to process in the Eastern District of Pennsylvania, while its incorporation and presence made it so amenable in Panama. If the two or more available forums are federal, 28 U.S.C. § 1404(a) mitigates the possible harshness of the forum non conveniens rule by providing for transfer rather than dismissal. But where the other available forums are non-federal -- state or foreign -- the traditional forum non conveniens remedy of dismissal is appropriate. See generally 1 J. Moore, Federal Practice para. 0.145[6.-1], p. 1635 n.4 (1976) and cases there cited.
Texpan admits that vessels owned by it regularly called at ports in New Jersey, Pennsylvania and Delaware. The Jones Act, 46 U.S.C. § ...