782 F.2d 1478 (9th Cir. 1986), 84-2474, Villar v. Crowley Maritime Corp.

Docket Nº:84-2474.
Citation:782 F.2d 1478
Party Name:Nenita S. VILLAR, individually and as personal representative of Renerio Z. Villar, deceased; Josephine Villar, Gerardo Villar; Reynaldo Villar; and Renerio Villar, Jr., Plaintiffs- Appellants, v. CROWLEY MARITIME CORPORATION; Genstar Marine, Inc.; and Saudi Arabia Transport Organization, Defendants-Appellees.
Case Date:February 14, 1986
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit
 
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Page 1478

782 F.2d 1478 (9th Cir. 1986)

Nenita S. VILLAR, individually and as personal

representative of Renerio Z. Villar, deceased;

Josephine Villar, Gerardo Villar;

Reynaldo Villar; and Renerio

Villar, Jr.,

Plaintiffs-

Appellants,

v.

CROWLEY MARITIME CORPORATION; Genstar Marine, Inc.; and

Saudi Arabia Transport Organization, Defendants-Appellees.

No. 84-2474.

United States Court of Appeals, Ninth Circuit

February 14, 1986

        Argued and Submitted Sept. 9, 1985.

        Benton Musslewhite, Houston, Tex., for plaintiffs-appellants.

        Ernest N. Reddick, Derby, Cook, Quinby & Tweedt, San Francisco, Cal., for defendants-appellees.

        Appeal from the United States District Court for the Northern District of California.

        Before WALLACE, HUG, and SCHROEDER, Circuit Judges.

Page 1479

        WALLACE, Circuit Judge:

        The wife and children (the Villars) of Renerio Villar (the decedent) appeal the district court's orders dismissing their action brought under the Jones Act, 46 U.S.C. Sec. 688, on grounds of forum non conveniens and denying their motion for a new trial and reconsideration. We have jurisdiction under 28 U.S.C. Sec. 1291, and we affirm.

        I

        In March 1977, the decedent drowned off Saudi Arabia while attempting to secure Barge 204, which had broken loose from its buoy mooring line. The decedent was a citizen and domiciliary of the Philippines, entered into his employment contract while in the Philippines, and was a crew member of the tugboat Bannock, which was conducting a lighterage operation in Saudi Arabian waters.

        After the decedent's death, the Villars filed a claim in district court alleging that Crowley Maritime Corporation, GTO Corporation, the Saudi Arabian Transport Organization, and a number of other corporations (collectively the corporations) were the decedent's "employer" under the Jones Act, and that the corporations' negligence and the Bannock 's unseaworthiness were the proximate causes of the decedent's death. The corporations moved for summary judgment, contending that Philippine law applied and that the case should be dismissed for forum non conveniens. After requesting additional discovery and briefing on the motion, the district court held that the case should be tried in the Philippines and dismissed the action on the ground of forum non conveniens.

        The Villars appealed, and in an unpublished disposition we reversed and remanded the case to the district court for entry of a written order analyzing the private and public interest factors articulated in Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 508-09, 67 S.Ct. 839, 843, 91 L.Ed. 1055 (1947). (Gulf Oil). The district court entered the requested written order, held that Philippine law rather than the Jones Act should apply, and again dismissed the action for forum non conveniens. The district court conditioned its dismissal, however, on the corporations' agreement to waive all jurisdictional, venue, and statute of limitation defenses in any claim based on the decedent's death that is brought by the Villars in the Philippines. The Villars' motion for a new trial and for reconsideration pursuant to rules 59 and 60, Fed.R.Civ.P., was denied, and they appealed.

        II

        A preliminary question should be addressed before we examine the choice of law and forum non conveniens issues. The Villars argue that the district court erred in making factual findings to determine the choice of law issue. They contend that there are disputed issues of fact concerning the decedent's true employer and the location of its day-to-day decisionmaking, both of which are necessary elements of a choice of law determination. See Lauritzen v. Larsen, 345 U.S. 571, 583-92, 73 S.Ct. 921, 928-33, 97 L.Ed. 1254 (1953) (Lauritzen ). They argue that these factual issues could only be decided at trial.

        We disagree. A district court is required to make a choice of law determination prior to dismissing a case for forum non conveniens. Pereira v. Utah Transport, Inc., 764 F.2d 686, 688 (9th Cir.1985) (Pereira ). To do so, a district court may have to resolve disputed factual issues involved in the choice of law determination before a trial on the merits. See Vaz Borralho v. Keydril Co., 696 F.2d 379, 385-87 (5th Cir.1983).

        At first blush, it seems strange to allow pretrial findings of disputed factual issues, but the result of a contrary conclusion is completely unacceptable: a determination that a particular forum is inconvenient could not be made until after the trial was underway. The latter alternative would defeat the purposes of the forum non conveniens doctrine. Consequently, the district court did not err in addressing issues that involved disputed factual findings of the decedent's true employer and the location

Page 1480

of its day-to-day decisionmaking. We now turn to the district court's choice of law determination.

        III

        The Villars contend that the district court erred in holding that Philippine law and not the Jones Act applies to their claim. We review the district court's choice of law determination de novo. Pereira, 764 F.2d at 689. We review the district court's factual findings under the clearly erroneous standard. United States v. McConney, 728 F.2d 1195, 1200 (9th Cir.) (en banc), cert. denied, --- U.S. ----, 105 S.Ct. 101, 83 L.Ed.2d 46 (1984); see also Fisher v. Agios Nicolaos V, 628 F.2d 308, 318 (5th Cir.1980) (applying clearly erroneous standard to finding as to location of "base of operations").

        The Supreme Court in Lauritzen outlined seven factors for determining if a claim is subject to the Jones Act: (1) place of the wrongful act; (2) the flag of the vessel; (3) allegiance or domicile of the injured party; (4) allegiance of the shipowner; (5) place and choice of law of the contract; (6) accessibility of a foreign forum; and (7) law of the forum. Lauritzen, 345 U.S. at 583-92, 73 S.Ct. at 928-33. The Court further emphasized in Hellenic Lines, Ltd. v. Rhoditis, 398 U.S. 306, 90 S.Ct. 1731, 26 L.Ed.2d 252 (1970) (Rhoditis ), that the Lauritzen test should not be applied in a mechanical fashion and that its list of seven factors was not intended to be exhaustive. Id. at 308-09, 90 S.Ct. at 1733-34. Consequently, in Rhoditis the Court concluded that the "base of operations" is a factor that also should be considered. Id. at 309, 90 S.Ct. at 1734.

        The first Lauritzen factor, the place of injury, typically is not emphasized because vessels frequently navigate over a large number of waters that are subject to a variety of different legal authorities. Lauritzen, 345 U.S. at 583-84, 73 U.S. at 928-29. The place of injury, however, takes on more significance if the vessel is not a typical blue-water vessel because the place of the wrongful act is no longer merely fortuitous. See Phillips v. Amoco Trinidad Oil Co., 632 F.2d 82, 87 (9th Cir.1980) (Phillips ), cert. denied, 451 U.S. 920, 101 S.Ct. 1999, 68 L.Ed.2d 312 (1981); see also Koke v. Phillips Petroleum Co., 730 F.2d 211, 219-20 (5th Cir.1984) (Koke ); Chiazor v. Transworld Drilling Co., 648 F.2d 1015, 1018-19 (5th Cir.1981) (Chiazor ), cert. denied, 455 U.S. 1019, 102 S.Ct. 1714, 72 L.Ed.2d 136 (1982).

        The corporations allege that the place of injury is significant since the decedent was employed specifically to work in a lighterage operation conducted in Saudi Arabian waters. He was flown to Saudi Arabia from the Philippines and his employment contract provided that at its termination he would be flown back to the Philippines. The corporations contend further that the Bannock was stationed in Saudi Arabia during the entire time the decedent...

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