Perusahaan Umum Listrik Negara Pusat v. M/V Tel Aviv, 82-2280

• Decision Date: 15 August 1983
• Docket Number: No. 82-2280,82-2280
• Citation: 711 F.2d 1231
• Parties: PERUSAHAAN UMUM LISTRIK NEGARA PUSAT, et al., Plaintiffs-Appellants, v. M/V TEL AVIV, etc., et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 1231

711 F.2d 1231

1985 A.M.C. 67

PERUSAHAAN UMUM LISTRIK NEGARA PUSAT, et al., Plaintiffs-Appellants, v. M/V TEL AVIV, etc., et al., Defendants-Appellees.

No. 82-2280.

United States Court of Appeals, Fifth Circuit.

Aug. 15, 1983.

Martin B. Mulroy, Houston, Tex., for plaintiffs-appellants.

Alan Dale, Houston, Tex., for defendants-appellees.

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

Before GOLDBERG, GEE and RANDALL, Circuit Judges.

GEE, Circuit Judge:

In this dispute between parties of different foreign nationalities concerning a collision on the high seas, the sole relevant contact with the United States forum was the presence of the defendant ship in the port of Houston some two and one-half years after the collision. Nevertheless, the question before us is not whether the court had jurisdiction to decide the case, for it is well settled that the courts of this country have that power. The question instead is whether the court properly declined jurisdiction, for it is equally well settled that forum non conveniens considerations permit, and may impel, a court to dismiss a case over which it has jurisdiction. In this case, we review closely the forum non conveniens law and the district court's conditional dismissal. Having done so, we affirm it.

Facts

This action arises from a collision in November 1979, between two vessels engaged in international commerce, an Israeli ship with Israeli crew, the M/V Tel Aviv, and an Indonesian ship with Indonesian crew, the M/V Djatimulia. The ships collided in international waters at the Mediterranean end of the Strait of Gibraltar. Neither ship was able to complete its voyage. A British tug with British crew, witness to the collision on its radar, towed the M/V Djatimulia to Malaga, Spain. The M/V Tel Aviv proceeded under her own power to Cadiz, Spain, and then on to Lisbon, Portugal. Each vessel and cargo was surveyed by damage experts employed by British salvors.

Plaintiffs in the present action, none of whom are United States citizens, are the owners of approximately 62% of the cargo which was on board the M/V Djatimulia at the time of the collision. In March 1982, plaintiffs found the M/V Tel Aviv in the port of Houston and filed and perfected an in rem admiralty action in the Southern District of Texas. ¹ The district court dismissed the action on forum non conveniens grounds, on the condition that defendant "appear and submit to the jurisdiction of the Court in London and provide security equivalent in amount to that on file in this cause." With this the court effectively transferred the dispute to the Admiralty Court in London, where plaintiffs also had on file an in rem action against the M/V Tel Aviv. The London action had been filed in October 1981, before the filing of the action in the Southern District, but it was never perfected because the M/V Tel Aviv was not present to be served. ²

A related action is before the same London court. In November 1981, the Indonesian corporation that owns the M/V Djatimulia, Jakarta Lloyd, filed an in rem action there against the M/V Tel Aviv. The owners of the cargo on board the M/V Djatimulia not represented by the plaintiffs in the present action have joined in Jakarta Lloyd's London action. That action has never been perfected against the ship, but the owners of the M/V Tel Aviv have submitted to the jurisdiction of the London Court.

The contest between these parties over whether this suit is to be tried in the courts of the United States or those of England is motivated in large part by the desire to select between different rules of law, a motivation often underlying such motions to dismiss for forum non conveniens. An English rule attributes the fault of the carrying vessel to its cargo, thus limiting in many cases the recovery that cargo can obtain from the colliding vessel. The Drumlanrig, (1911) A.C. 16. In the United States, to the contrary, cargo can recover full damages against a negligent vessel irrespective of the fault of its carrying vessel. E.g., The New York, 175 U.S. 187, 209-10, 20 S.Ct. 67, 75, 44 L.Ed. 126 (1899). Because these vessels are likely to share fault, the English rule will favor the defendant shipowner. ³

Forum Non Conveniens and In Rem Actions

Today's case comprises parties, witnesses and physical evidence from locations as diverse as the Middle East, the Far East and Europe. This confluence of international contacts is typical of modern international commerce. Yet, our review of relevant jurisdictional law begins with a nineteenth century Supreme Court opinion, The Belgenland, involving a maritime collision of similar international proportions. 114 U.S. 355, 5 S.Ct. 860, 29 L.Ed. 152 (1884). Nearly a full century after that decision was rendered, the essential question persists: in what cases should a court of this country exercise jurisdiction over foreign parties when its sole connection with the dispute is its in rem control over the defendant?

The dispute in The Belgenland presented this question and the Court answered it by upholding jurisdiction. That case resulted from a collision on the high seas between a Belgian and a Norwegian vessel. The defendant ship was seized in rem when it called at the port of Philadelphia for repairs. The Court acknowledged that in general "courts will use a discretion about assuming jurisdiction of controversies between foreigners in cases arising beyond the territorial jurisdiction of the country to which the courts belong." 114 U.S. at 365, 5 S.Ct. at 864. Yet, after reviewing the longstanding policy in Anglo-American law "to allow a party alleging grievance by a collision to proceed in rem against the ship wherever found," ⁴ the Court expressed the opinion that the courts "have jurisdiction in such cases and that they will exercise it unless special circumstances exist to show that justice could be better subserved by declining it." 114 U.S. at 367, 5 S.Ct. at 865.

Although the Court affirmed jurisdiction in The Belgenland, the notion that "special circumstances" may induce a court to decline jurisdiction was acknowledged in that case and has been applied in admiralty actions for well over a century. ⁵ The doctrine of forum non conveniens has developed to guide courts in determining whether such special circumstances exist. This doctrine represents a major exception to the general principle that our courts "are bound to proceed to judgment, and to afford redress to suitors before them, in every case to which their jurisdiction extends. They cannot abdicate their authority or duty in any case in favor of another jurisdiction." Hyde v. Stone, 61 U.S. (20 How.) 170, 175, 15 L.Ed. 874 (1858).

Although long accepted in admiralty, the doctrine was not formally applied by the Supreme Court to non-admiralty cases until Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 67 S.Ct. 839, 91 L.Ed. 1055 (1947). ⁶ There a federal diversity action was brought in New York by a Virginia resident against a Pennsylvania corporation for the negligent delivery of gasoline to plaintiff's warehouse in Virginia; the gasoline exploded and the ensuing fire consumed the warehouse. The Court reinstated a forum non conveniens dismissal because the substantial weight of the contacts relevant to the dispute were in Virginia, not New York. Defendant had been amenable to suit in New York solely because it was qualified to do business and had designated officials to receive service of process there.

In an opinion which has been recognized as having "crystallized" ⁷ the law of forum non conveniens, the Gilbert Court all but codified the relevant law. Explaining that venue statutes are of necessity general--intended to assure plaintiffs some forum in which to pursue a remedy--the Court characterized the forum non conveniens doctrine as a judicial response to the possible misuse by plaintiffs of their ability to select forums. In the words of the Court, "[t]he open door may admit those who seek not merely justice but perhaps justice blended with some harassment." 330 U.S. at 507, 67 S.Ct. at 842.

After reviewing the foundations of the doctrine, the Court outlined the considerations relevant to a forum non conveniens dismissal. Most pressing are the "private" interests of the litigants, including access to sources of proof and enforceability of judgments. Also to be considered are "public" interests including the relationship between the forum and the dispute and the familiarity of the forum with the relevant law. Although "plaintiff's choice of forum should rarely be disturbed," dismissal may be necessary in the interests of convenience and justice if "the balance [of public and private interests] is strongly in favor of the defendant['s]" choice of a different forum. Id. at 508, 67 S.Ct. at 843. Justice would not be subserved by the retention of jurisdiction in such cases. The court would be forced to expend resources to review a dispute over which its constituents have no interest and the defendant would be restricted in presenting his defense.

The explanation found in Gilbert of the need for forum non conveniens dismissals in non-admiralty cases--to avoid misuse of general venue statutes--demonstrates why the doctrine was created originally by courts sitting in admiralty: admiralty cases are free of such restrictions. Jurisdiction over the defendant vessel is based instead on the locus rei sitae doctrine. ⁸ Not until Gilbert did the Supreme Court acknowledge that venue statutes were no longer adequate to control case distribution in non-admiralty actions and that forum non conveniens dismissals were needed to assist in this function.

In its day Gilbert represented the Supreme Court's express endorsement of the extension of forum non conveniens dismissals from admiralty to non-admiralty cases. It is ironic, ⁹ therefore, that appellants argue before us that in rem admiralty actions present a special exception virtually immune...