Appeal from the United States District Court for the Northern District of California, Eugene F. Lynch, District Judge, Presiding, D.C. No. C-83-1118-EFL.
Wright, Poole and Wiggins, Circuit Judges.
Santiago Pereira appeals from the district court's dismissal of his action brought under the Jones Act, 46 U.S.C. § 688. Pereira, a Spanish national, was injured aboard the LAKE MENDOCINO, which flies the Liberian flag. Pereira brought suit in the Northern District of California against the vessel's owners, Utah Transport, Inc. and Utah Shippers, Inc. ("Utah"), both of which are Liberian corporations with San Franscisco offices. Utah moved to dismiss for forum non conveniens. The district court dismissed the action in favor of litigation under Spanish jurisdiction. Pereira contends that the Jones Act applies to the motion to dismiss. We affirm.
Appellant Santiago Pereira, a Spanish citizen and domiciliary, was hired in December 1977 in Spain, by a Spanish manning agent to serve as a crewman on the vessel M/V LAKE MENDOCINO. The ship, which sails under the Liberian flag, is owned by Utah Transport, Inc., and Utah Shippers, Inc.*fn1, Liberian corporations whose offices are in San Francisco. His employment contract was executed in Spain and provided that all disputes would be subject to the law of the flag.
Pereira was injured by a Japanese-manufactured device while the ship was off the coast of Thailand. He obtained medical treatment in Thailand and later in Spain. At the time of the injury the LAKE MENDOCINO was en route from Japan to Singapore. The ship visited the United States only infrequently, and had not called on a an American port since January 1979, eleven months prior to Pereira's injury.
Pereira filed his complaint against Utah in the Northern District of California under the Jones Act. 46 U.S.C. § 688. Utah moved to dismiss for forum non conveniens. In a written memorandum opinion, the district court concluded that Liberian law should apply and that Spain was the most convenient forum. The court dismissed on the condition that Utah subject itself to Spanish jurisdiction. Pereira appeals, claiming that American law applies and that the dismissal was improper.
Applicability of Jones Act
Pereira contends that the Jones Act, rather than Liberian law, applies to the present case. Utah disagrees, but argues that this court need not reach the choice of law issue, since it is unnecessary for a court to determine whether American or foreign law applies before dismissing a case for forum non conveniens. The Ninth Circuit cases cited by Utah, however, do not involve the Jones Act. See, e.g., Cheng v. Boeing Co., 708 F.2d 1406 (9th Cir.), cert. denied, 464 U.S. 1017, 104 S. Ct. 549, 78 L. Ed. 2d 723 (1983) (case involving airline crash in Taiwan dismissed for forum non conveniens with no discussion of choice of law). Utah also cites Rodriguez v. Flota Mercante Grancolombia, S.A., 703 F.2d 1069, 1075 (9th Cir.), cert. denied, 464 U.S. 820, 104 S. Ct. 84, 78 L. Ed. 2d 94 (1983), to support its contention that a choice of law analysis is unnecessary in deciding whether to dismiss on the basis of forum non conveniens.
In Rodriguez, a Colombian seaman asserted Jones Act and general maritime causes of action. The shipowner moved to dismiss for lack of subject matter jurisdiction or, alternatively, for forum non conveniens. The district court dismissed without stating its reasons. The court affirmed the dismissal of the Jones Act cause, but remanded to the district court for explication of its reasoning in dismissing the general maritime cause. Id. Contrary to Utah's contention, the court did not consider whether choice of law analysis was necessary before dismissing for forum non conveniens.
The Second Circuit has held that a choice of law determination is not involved in a forum non conveniens analysis. Cruz v. Maritime Co. of Philippines, 702 F.2d 47, 48 (2d Cir. 1983). Other circuits have held that in order to apply the forum non conveniens doctrine in a Jones Act case, a court must conduct a choice of law of analysis. These cases state that if American law applies, the court may not dismiss the case in favor of a foreign court for forum non conveniens. Nicol v. Gulf Fleet Supply Vessels, Inc., 743 F.2d 289, 292-93 (5th Cir. 1984); Needham v. Phillips Petroleum Co. of Norway, 719 F.2d 1481, 1483 (10th Cir. 1983); Szumlicz v. Norwegian America Line, Inc., 698 F.2d 1192, 1195 (11th Cir. 1983). See also, Edelman, Forum non Conveniens: Its Application in Admiralty Law, 15 J. of Maritime Law and Commerce 517, 529-32 (1984).
The district court here held not clearly distinguish between the choice of law and forum non conveniens issues; rather, its decision was based both on a weighing of forum non conveniens factors and on its conclusion that Liberian law applies. We agree with the Fifth, Tenth and Eleventh Circuits that a choice of law determination ...