Fisher v. Agios Nicolaos V

• Citation: 628 F.2d 308
• Decision Date: 10 October 1980
• Docket Number: No. 79-1103,79-1103
• Parties: Jack FISHER, Personal Representative of the Estate of Dimitrios Kepessidis, Plaintiff-Appellee, v. The AGIOS NICOLAOS V et al., Defendants-Appellants. Eugenia KEPESSIDIS, Individually, etc., et al., Plaintiffs-Appellees, v. The AGIOS NICOLAOS V, etc., et al., Defendants-Appellants.
• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)

Page 308

628 F.2d 308

68 A.L.R.Fed. 342

Jack FISHER, Personal Representative of the Estate of Dimitrios Kepessidis, Plaintiff-Appellee, v. The AGIOS NICOLAOS V et al., Defendants-Appellants.

Eugenia KEPESSIDIS, Individually, etc., et al., Plaintiffs-Appellees, v. The AGIOS NICOLAOS V, etc., et al., Defendants-Appellants.

No. 79-1103.

United States Court of Appeals, Fifth Circuit.

Oct. 10, 1980.

Robert S. DeLange, Galveston, Tex., E. D. Vickery, Houston, Tex., for defendants-appellants.

Duee, Dodson & DeGravelles, Paul H. Duee, Baton Rouge, La., for Eugenia Kepessidis.

Appeal from the United States District Court for the Eastern District of Texas.

Before MORGAN, CHARLES CLARK and TATE, Circuit Judges.

TATE, Circuit Judge:

The surviving widow and dependents of a Greek seaman killed on a foreign vessel in an American port were awarded damages in this wrongful death action, which was brought under the Jones Act and general maritime law. The defendants held liable (the shipowner Valsky, a Liberian corporation, and the ship operator Valmas, a Panamanian corporation) contend principally that the district court erred (a) in failing to grant a motion for dismissal based on forum non conveniens, (b) in applying United States rather than Greek law, and (c) by incorrectly computing the damage award. We find no reversible error and therefore affirm the judgment of the district court.

FACTS

The decedent, Dimitrios Kepessidis, a citizen of Greece, was hired in Greece as the chief engineer for the M-V AGIOS NICOLAOS V and joined the vessel in Beaumont, Texas, on May 22, 1976.

The AGIOS NICOLAOS V is a Greek flag-flying and Greek registered vessel owned by defendant, Valsky Maritime, Ltd. (Valsky), a Liberian corporation. It is operated by the defendant Valmas Brothers Shipping, S.A. (Valmas), a Panamanian corporation. ¹ The vessel, which had recently been purchased from a Swedish vendor, was the only ship owned by Valsky. The AGIOS NICOLAOS V had sailed to Beaumont (on its maiden voyage under Valsky) without any cargo. Its first business venture (and only one prior to the accident) was to pick up corn at a Beaumont grain elevator and to deliver it to the Soviet Union.

On June 1, 1976, Chief Engineer Kepessidis, who had only nine days earlier joined the crew of the AGIOS NICOLAOS V, had gone to help one of the crew start the engine boilers. They were unsuccessful in three attempts. On the fourth attempt, the boiler exploded, and the decedent was burned. Despite being injured, the decedent proceeded to fight the fire, but the fire extinguisher he used was not in working order. In a further attempt to extinguish the blaze, members of the crew turned on the carbon dioxide system. In doing so, however, no one took a head count, and Chief Engineer Kepessidis was trapped in the engine room, where he suffocated from the carbon dioxide.

We should here note that the defendants do not attack the district court's findings that the decedent's accident and death resulted from the unseaworthiness of the vessel ² and the negligence of the defendants. ³ While a contention is made that

the decedent's own negligence may have been a contributory cause, the trial court's finding to the contrary is far from being clearly erroneous ⁴ so as to justify our upsetting it on review. ⁵

ISSUES

On appeal, the defendants-appellants raise the following principal issues: (1) Whether the trial court erred in retaining jurisdiction of this suit (a forum non conveniens contention); (2) If jurisdiction were properly retained, whether the district court erred in applying American law rather than Greek law; and (3) Whether the damages were properly computed, in that (a) the award of future loss of earnings was not discounted to present value and (b) prejudgment interest was improperly allowed (or, alternatively, at the wrong rate).

I. Forum Non Conveniens

The defendants' motions in the trial court did not dispute its jurisdiction of these maritime claims, nor that court's discretion in determining whether the action before it should be conditionally dismissed on forum non conveniens grounds that the Greek courts were a more suitable forum. As we apprehend their argument before us, the ultimate contention of the defendants is that the district court abused its discretion in not dismissing the suit because, in their view, the court was in error under the Lauritzen test (see text at note 7 infra ) in determining that American law applied.

The fountainhead decision in determining application of the forum non conveniens principle is Gulf Oil Corporation v. Gilbert, 330 U.S. 501, 67 S.Ct. 839, 91 L.Ed. 1055 (1947), a non-maritime case. There the Court stated that "(t)he principle of forum non conveniens is simply that a court may resist imposition upon its jurisdiction even when jurisdiction is authorized by the letter of a general venue statute." 330 U.S. at 507, 67 S.Ct. at 842. The doctrine "presupposes at least two forums in which the defendant is amenable to process . . . (and) furnishes criteria for choice between them." Id. Although "the combination and weight of factors requisite to given results are difficult to forecast or state," 330 U.S. at 508, 67 S.Ct. at 843, among the factors of "private interest" listed by the Court were accessibility of proof and witnesses, enforceability of any resulting judgment, and the ease and expense of litigation in the forum. Such factors allow a court to "weigh relative advantages and obstacles to fair trial." Id. A trial court should also look to "public interest" factors such as the burden created for local court calendars and local juries by trials having no connection with the forum. The Court stressed that "(t)he doctrine leaves much to the discretion of the court . . . But unless the balance is strongly in favor of the defendant, the plaintiff's choice of forum should rarely be disturbed." Id.

In the exercise of discretion to retain jurisdiction of maritime tort suits, the United (T)he question is not whether an injustice will result if the court does not exercise jurisdiction, but whether exercising jurisdiction will result in an injustice . . . Under the proper standard, the court must begin with the assumption it will exercise jurisdiction unless it is established, by the defendant, that an injustice would follow.

States Supreme Court early stated that "(the) jurisdiction . . . will (be) exercise(d) . . . unless special circumstances exist to show that justice would be better subserved by declining it." The Belgenland v. Jensen, 114 U.S. 355, 367, 5 S.Ct. 860, 865, 29 L.Ed. 152 (1885). In this circuit, this standard for the exercise of this trial court discretion in resolving forum non conveniens contentions has been reiterated in these terms:

Poseidon Schiffahrt, G. M. B. H. v. The M/S Netuno, 474 F.2d 203, 205 (5th Cir. 1973), vacating a forum non conveniens dismissal. See also Motor Distributors, Ltd. v. Olaf Pedersen's Rederi A/S, 239 F.2d 463 (5th Cir. 1956), cert. denied, 353 U.S. 938, 77 S.Ct. 816, 1 L.Ed.2d 760. See Comment, The Convenient Forum Abroad Revisited: A Decade of Development of the Doctrine of Forum Non Conveniens in International Litigation in the Federal Courts, 17 Va.J.Int.L. 755, 764 (1977).

Reviewing the district court's exercise by this standard of its discretion to retain jurisdiction, we find no abuse. Even aside from the district court's correct determination that American law applies (which dictates rejection of a forum non conveniens dismissal, see part II of this opinion below), we would be unable to hold that the trial court discretion was abused when it retained jurisdiction, based upon such factors here present as: the accident having occurred in a United States port, with investigations having been undertaken by American agencies (the coast guard and the local fire department) and medical authorities; American counsel having been retained, with substantial steps toward adjudication having already been undertaken; the joinder with the maritime tort claims of a bona fide wage claim arising under American law; and the substantial issue from the onset of the litigation as to whether American or Greek law ⁶ applied to this accident. Thus, even if Greek maritime-injury law (see note 6) was ultimately decided to be applicable, we cannot say the trial court abused its discretion by retaining jurisdiction and denying a forum non conveniens dismissal.

We do not find persuasive the defendants' forum non conveniens arguments. First, they state that the trial court's refusal to find Lauritzen factors alone determinative as to this issue presents an error of law or a clearly erroneous factual determination; but they overlook that these choice-of-law factors, while perhaps relevant since American law's application ends further inquiry (see II below), are not determinative as to forum non conveniens as Lauritzen itself states. ⁷ Second, the defendants An appellate court reverses the decision of a district court on a motion to dismiss on forum non conveniens if it constitutes a clear abuse of discretion. Fitzgerald v. Texaco, Inc., 521 F.2d 448, 451 (2nd Cir. 1975), cert. denied, 423 U.S. 1052, 96 S.Ct. 781, 46 L.Ed.2d 641 (1976); Paper Operations Consultants International, Ltd. v. S. S. Hong Kong Amber, 513 F.2d 667, 670 (9th Cir. 1975); The Kanto Maru, 112 F.2d 564, 565 (9th Cir. 1940). Having found no such abuse, we affirm the district court's retention of jurisdiction.

argue that the Belgenland standard for retaining jurisdiction ("unless special circumstances exist to show that justice would be subserved by declining it," 114 U.S. at 367, 5 S.Ct. at 865) applies only to collisions between foreign vessels and not to suits by a foreign seaman against a foreign vessel or owner ⁸-a distinction for which no citation is offered, which has never been noted in the doctrinal literature, ⁹ and which has been ignored in decisions retaining jurisdiction over suits by foreign...