Vargas v. A. H. Bull S. S. Co.

• Citation: 44 N.J.Super. 536,131 A.2d 39
• Decision Date: 04 April 1957
• Docket Number: Nos. L--837,L--800,L--825,s. L--837
• Parties: Angel Pain VARGAS, Plaintiff, v. A. H. BULL STEAMSHIP CO., Defendant. Felipe ALMESTICA, Plaintiff, v. BALTIMORE INSULAR LINE, Inc., Defendant. Juan Echevarria RODRIGUEZ, Plaintiff, v. A. H. BULL STEAMSHIP CO., Defendant. . Law Division
• Court: Superior Court of New Jersey

Page 536

44 N.J.Super. 536

131 A.2d 39

Angel Pain VARGAS, Plaintiff, v. A. H. BULL STEAMSHIP CO., Defendant.

Felipe ALMESTICA, Plaintiff, v. BALTIMORE INSULAR LINE, Inc., Defendant.

Juan Echevarria RODRIGUEZ, Plaintiff, v. A. H. BULL STEAMSHIP CO., Defendant.

Nos. L--837, L--800, L--825.

Superior Court of New Jersey.

Law Division.

April 4, 1957.

Samuel M. Cole, Jersey City, for plaintiffs.

McCarter, English & Studer, Newark, (Nicholas Conover English, Newark, of counsel), for defendants.

GAULKIN, J.C.C. (temporarily assigned).

In each of the above entitled cases, the defendant moves to dismiss the action on the ground that this court is a Forum non conveniens.

Each plaintiff is a resident of Puerto Rico. Each complaint alleges plaintiff was injured in an accident on a defendant's ship, for which that defendant is liable under '46 U.S.Code 688, commonly known as the Jones Act.' Each accident happened in Puerto Rico.

Each defendant is a corporation organized under the laws of New Jersey. None of the defendants could have been served with process in Puerto Rico when these actions were started. Defendants do say that since their ships ply regularly between Puerto Rico and American mainland ports, plaintiffs could have attached the ships. However, defendants do not show that attachment in Puerto Rico is as simple and effective as the service of plenary process. Attachment usually involves posting bond, the expense and the mechanics of seizure, questions of ownership, liens, equity, and so forth, to say nothing of the limited effect and enforceability of the resulting judgment. Therefore, since defendants have not sustained the burden to prove otherwise, I find for the purpose of these motions that defendants could not have been sued in Puerto Rico.

Anticipating this, each defendant 'pledges itself to voluntarily appear in any action which may be brought against it in Puerto Rico,' if these motions to dismiss are granted.

The question therefore narrows itself to this--assuming these be cases which the court would dismiss under Forum non conveniens had defendants been amenable to process in Puerto Rico when the actions were started, may the court do so upon defendants' present offer to appear there?

Plaintiffs contend the court may not do so for the following reasons: (1) by virtue of the federal statutes and cases, a state court does not have the power to refuse to hear a case brought under the Jones Act; (2) the doctrine of Forum non conveniens may be applied only when plaintiff had a choice of forums when he started suit, and (3) even if (1) and (2) be resolved against plaintiffs, the facts here do not justify the application of the doctrine.

I

In support of argument (1), plaintiffs say the Jones Act (46 U.S.C.A. § 688) gives plaintiffs who sue thereunder the benefit of 'all statutes of the United States conferring or regulating the right of action for death in the case of railway employees,' one of which statutes is the Federal Employers' Liability Act (45 U.S.C.A. §§ 51--60); that section 56 of the Federal Employers' Liability Act gives the plaintiff the absolute right to sue, Inter alia in the courts of the state in which the defendant resides; and that these statutes compel state courts to retain and decide all F.E.L.A. and Jones Act cases instituted therein, even though those courts would dismiss, under Forum non conveniens, similar cases not brought under those acts. In support of this proposition plaintiffs rely chiefly on Miles v. Illinois Central R. Co., 315 U.S. 698, 62 S.Ct. 827, 86 L.Ed. 1129 (1942), Baltimore & Ohio R. Co. v. Kepner, 314 U.S. 44, 62 S.Ct. 6, 86 L.Ed. 28 (1941), Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 67 S.Ct. 839, 91 L.Ed. 1055 (1947), and Ex parte Collett, 337 U.S. 55, 69 S.Ct. 944, 93 L.Ed. 1207 (1949).

There is no need to discuss these cases in detail because in State of Missouri ex rel. Southern R. Co. v. Mayfield, 340 U.S. 1, 71 S.Ct. 1, 95 L.Ed. 3 (1950), the Supreme Court settled the question adversely to the position taken by plaintiffs. As Justice Jacobs said in Gore v. U.S. Steel Corp., 15 N.J. 301, 312, 104 A.2d 670, 676, 48 A.L.R.2d 841 (1954) certiorari denied 348 U.S. 861, 75 S.Ct. 84, 99 L.Ed. 678 (1954), in the Mayfield case 'the Supreme Court indicated that Forum non conveniens may be applied by a state court even in a proceeding under the Federal Employers' Liability Act so long as the policy is administered impartially and without discrimination.' Plaintiffs contend that 'the underpinning of the Mayfield case has been cut away by Pope v. Atlantic Coast Line R. Co., 345 U.S. 379, 73 S.Ct. 749, (97 L.Ed. 1094) (1953),' and therefore the Mayfield case may no longer be considered as controlling, but an examination of the opinions in the Pope case shows it did not weaken the Mayfield case in the least. Many cases decided since Pope have held Mayfield still to be controlling. E.g., Hill v. Upper Mississippi Towing Corporation, 141 F.Supp. 692 (D.C.D.Minn.1956); Price v. Atchison, T. & S.F. Ry. Co., 42 Cal.2d 557, 268 P.2d 457, 43 A.L.R.2d 756 (Sup.Ct.1954); Atlantic Coast Line R. Co. v. Pope, 93 Ga.App. 550, 92 S.E.2d 300 (Ct.App.1956); Peterie v. Thompson, 10 Ill.App.2d 100, 134 N.E.2d 534 (App.Ct.1956); Johnson v. Chicago, B. & Q.R. Co., 243 Minn. 58, 66 N.W.2d 763 (Sup.Ct.1954); Maynard v. Chicago & N.W. Ry. Co., 247 Minn. 228, 77 N.W.2d 183 (S.Ct.1956); St. Louis-San Francisco Ry. Co. v. Superior Court, 276 P.2d 773 (Okl.Sup.Ct.1954); Norwood v. Kirkpatrick, 349 U.S. 29, 75 S.Ct. 544, 99 L.Ed. 789 (1955). See, also, the notes in 43 A.L.R.2d 774 and 48 A.L.R.2d 850.

II

We return, then, to the principal question--may Forum non conveniens be applied in the only jurisdiction in which plaintiff can obtain service on defendant, upon defendant's offer to submit to suit in the more convenient forum?

Defendants cite Rodriguez v. A. H. Bull Steamship Co., 286 App.Div. 804, 143 N.Y.S.2d 618 (App.Div.1955). In that case the lower court had refused to dismiss the action brought in New York under the Jones Act by a citizen of Puerto Rico against a New Jersey corporation, for an accident which happened in Puerto Rico. The Appellate Division reversed. Its brief memorandum did not discuss the law, but said:

'On the defendant's stipulation to appear in the courts of Puerto Rico in any action instituted by the plaintiff to recover on the cause of action alleged in the complaint herein and to waive the statute of limitations, the orders appealed from are unanimously reversed, the motion to dismiss the complaint granted and judgment is directed to be entered in favor of the defendant dismissing the complaint herein.'

Although 'the New York courts will as a matter of public policy refuse to retain jurisdiction in an action between non-residents for torts arising outside the state, unless special reasons are shown' (48 A.L.R.2d 831, and cases cited), it must be admitted that in the Rodriguez case defendant's consent to appear was apparently the controlling consideration.

We accept it to be settled that 'in all cases in which the doctrine of Forum non conveniens comes into play, it presupposes at least two forums in which the defendant is amenable to process; the doctrine furnishes criteria for choice between them.' Gulf Oil Corp. v. Gilbert, supra, 330 U.S. 501, at pages 506--507, 67 S.Ct. 839, at page 842; Foster-Milburn Co. v. Knight, 181 F.2d 949 (2 Cir., 1950); Gore v. U.S. Steel Corp., supra. Plaintiffs insist that 'amenable to process' means it 'shall not be dependent merely upon the will or grace of the defendant, but must be provided by law,' citing Tivoli Realty v. Interstate Circuit, 167 F.2d 155, 157 (5 Cir., 1948), certiorari denied 334 U.S. 837, 68 S.Ct. 1494, 92 L.Ed. 1762 (1948). See, also, the dissenting opinion in Paramount Pictures v. Rodney, 186 F.2d 111, 119 (3 Cir., 1950), and General Electric Co. v. Central Transit Warehouse Co., 127 F.Supp. 817 (D.C.D.Mo.1955). However, the Tivoli case was not one in which the defendants moved to dismiss on Forum non conveniens in the U.S. District Court in Delaware where the action was pending, but one in which the defendants had gone into Texas, Tivoli's home state, to enjoin the Delaware action. That is a quite different situation than the application of Forum non conveniens in the jurisdiction in which the action is pending. As the Fifth Circuit Court of Appeals said in the Tivoli case (167 F.2d 156), 'the parties failed to present the issue of incorvenience to the Delaware court, * * *; but federal district courts are within a single judicial system * * *. Therefore, as a matter of comity, we think the court below erred in granting the injunction.' Miles v. Illinois Central R. Co., Baltimore & Ohio R. Co. v. Kepner, and Pope v. Atlantic Coast Line R. Co., supra, were all cases in which the defendants were denied injunctions in jurisdictions other than the one in which the action was pending. See, also, the notes in 57 A.L.R. 77, 115 A.L.R. 237, and 6 A.L.R.2d 896.

Compare with such cases, State of Missouri ex rel. Southern R. Co. v. Mayfield, supra, and Paramount Pictures v. Rodney, supra. The latter case was the sequel to the Tivoli case. The defendants in the Tivoli case, after the decision in 167 F.2d 155 quoted above, applied to the U.S. District Court in Delaware to transfer the case to the U.S. District Court in Texas under 28 U.S.C. § 1404(a). The district judge refused, but the Third Circuit Court of Appeals reversed, Paramount Pictures v. Rodney, supra. It is true that the majority opinion in Paramount Pictures v. Rodney disclaimed any intention of disagreeing with the Tivoli case. It pointed out that 1404(a) had not yet been adopted when Tivoli was decided, inferring that under 1404(a) Tivoli might have been decided differently. But Pope v. Atlantic Coast Line R. Co., supra, shows that the decision in Tivoli (167 F.2d 155) would be the same under 1404(a). In the General Electric case the...