Petition for Writ of Certiorari — Halliburton Company v. Zipfel (Nos. 87-1391, 87-1122, 87-1698)

Supreme Court. U.S

FILED

87-1391] JAN 13 1986

In the Supreme Co et

OF THE

United States

OCTOBER TERM, 1987

HALLIBURTON COMPANY,

OCEANEERING INTERNATIONAL, INC. and

McCLELLAND ENGINEERS, INC..,

Petitioners,

Vv.

SHEREEN RAMONA ZIiPFEL, VYNER GERARD ALBUQUERQUE,

and CHAN LuCK CHEE,

Respondents.

Petition for Writ of Certiorari to the United States

Court of Appeals for the Ninth Circuit

GRAYDON S. STARING

Counsel of Record

Two Embarcadero Center

San Francisco, California 94111

Tele: (415) 984-8200

Attorney for Petitioner

Halliburton Company

EL_Liot L. BIEN

555 California Street

San Francisco, California 94104

Attorney for Petitioner

Oceaneering International, Inc.

HAROLD A. STONE

STEVEN M. PERL

One Embarcadero Center

San Francisco, California 9411 |

Attorneys for Petitioner

McClelland Engineers, Inc.

LittickK McCHose & CHARLES

BRONSON, BRONSON & MCKINNON

GUDMUNDSON, SIGGINS, STONE & SKINNER

Of Counsel

BOWNE OF SAN FRANCISCO INC « !S9O NINTH ST « SF CA 94103 « 415) 864 2300

QUESTIONS PRESENTED

1. Where a district court with discretion to dismiss a mari-

time action under the doctrine of forum non conveniens or

transfer it to a more appropriate district’ renders a final judgment

of dismissal determining that the action should only be brought in

a foreign forum (and not in any district of the United States)° and

the plaintiff thereafter sues the same defendants on the same

claim in a state court within a district of the United States in

reliance upon the jurisdiction granted by the Saving-to-Suitors

Clause,’ may the district court not “protect or effectuate its

judgment” within the meaning of the Anti-Injunction Act* by an

injunction under the All-Writs Act.°

2. Subsidiary included questions are:

‘a. Is the district court’s judgment not a “judgment”

within the meaning of the Anti-Injunction Act?

b. Does the exception provided by the Saving-to-Suitors

Clause to the district courts’ exclusive iurisdiction of admi-

ralty or maritime cases confer on suitors the power to

maintain in a state court an admiralty or maritime claim

contrary to the final decision of a district court that the claim

should not be entertained in the United States?

' 28 U.S.E. Section 1404.

* Respondents could have urged the alternative of transfer but did not

and the issue is precluded by the judgments.

328 U.S.C. Sec. 1333.

*98 U.S.C. Sec. 2283.

> 28 U.S.C. Sec. 1651.

—

il

TABLE OF CONTENTS

QUESTIONS PRESSING GE. «6k cnns cn soceavagnes ows

COPENTING DEAAIW 2 cus cu vss sted Eee ee

FURR EE ok kv x ean aance sane eee

CONSTITUTIONAL PROVISIONS AND STATUTES

RPO VOR, VIOP ow oe vn es on 45 Ws ee eee re

STATEMENT OF S006 CARS cic ccscaxcu ks

REASONS FOR GRANTING THE WRIT ..........

I. The decision below creates a clear conflict among

the GGUS oi cc xia eceeeeenee Seis nee

Il. The Court of Appeals has decided an important

question of federal law which has not been but

should be settled by this Court.................

CONCLUSION 3... ics ndensake ie et eeeee

APPENDICES

A. Court of Appeals, Opinion, June 23, 1987 .......

B. Court of Appeals, Order Amending Opinion and

Opinion, November 24, 1987................4..

C. District Court, Order, October 22, 1984 .........

D. District Court, Memorandum of Opinion and Order,

Asguet 12, 1968 oc. ss inccannas ee eee

E. District Court, Order to Show Cause and Temporary

Restraining Order, November 22, 1985 ..........

F. District Court, Findings of Fact, Conclusions of

Law, Injunction and Final Judgment, January 30,

bP rr Cy te

G. Court of Appeals, Order (denying petitions for

rehearing), November 24, 1987 ................

Page

il

TABLE OF AUTHORITIES CITED

Cases

Page

Amalgamated Clothing Workers of America v. Richman

Ge Se ae Dr 7,9

American Surety Co. v. Baldwin, 287 U.S. 156 (1932) ... 12

Atlantic Coast Line Railroad Co. v. Brotherhood of Loco-

motive Engineers, 398 U.S. 281 (1970) .............. 7,8

Baldwin v. lowa State Traveling Men’s Assn., 283 U.S. 522

ES ee ack s bat as da ed eek © oboe 12

Chick Kam Choo v. Exxon Corp., 764 F.2d 1148, 1986

8 oe eas) 4,9

De Lovio v. Boit, 7 Fed. Cas. 418, (C.C. Mass. 1815).... 3

Exxon Corp. v. Chick Kam Choo, 816 F.2d 307 (Sth Cir.

1987) cert. granted Uh Teena. . re 6,7

Garrett v. Moore-McCormack Co., 317 U.S. 239 (1942). .8, 11

Guaranty Trust Co. v. York, 327 U.S. 99 (1945) ....... 10, 11

Hanna v. Plumer, 380 U.S. 460 (1965) ................ 11

Hopson v. Texaco, Inc., 383 U.S. 262, 1966 A.M.C. 281

i i i aaa ayy gee ee 4

In re Air Crash Disaster Near New Orleans, La., 821 F.2d

aaa, Geer Mee, Jens Coen Ct. 1987) . oaks. cc cass 7,11

International Shoe Co. v. Washington, 326 U.S. 310 (1945) 12

Kassapas v. Arkon Shipping Agency, Inc., 485 So.2d 565

(La. App. 5th Cir. 1986), writ denied, 488 So.2d 203 (La.

1986) cert. denied. _._. U.S. ___, 93 L. Ed. 2d 372

ea a eee es eccn eek e 9,10

Mitchum v. Foster, 407 U.S. 225 (1972) ............... 8

Parsons v. Chesapeake & Ohio Railroad Co., 375 U.S. 71

ee i ecb ek k kG weed ke au Woes 8

Pastewka v. Texaco, Inc., 565 F.2d 851, 1979 A.M.C. 190

ee ee wus 7,11

Piper Aircraft Co. v. Reyno, 454 U.S. 235, 1982 A.M.C. 214

a ge a 9

IV

TABLE OF AUTHORITIES CITED

CASES

Page

Romero v. International Terminal Operating Co., 358 U.S.

S54, TOS ADC. She CGS) oi kk cnceeaececcsacics 4

Sherrill v. Brinkerhoff Maritime Drilling, 615 F. Supp. i021,

RS A, Bie Cee Ga, PI 6 oc veces ccevns l

Strawbridge v. Curtis, 7 U.S. (3 Cranch) 267 (1806) .... 4

The Bremen v. Zapata Offshore Co., 407 U.S. 1, 1972

Pn SE CEPR aca encase ee sec aersse sea cesee 9

Union Fish Co. v. Erickson, 248 U.S. 308 (1919) ........ 3

Vendo Co. v. Lektro-Vend Corp., 433 U.S. 623 (1977)... 8

Villar v. Crowley Maritime Corp., 782 F.2d 1478, 1987

Pe lee OF, Ue | err ree eee e 10

Zipfel v. Halliburton Co., 820 F.2d 1438, 1987 A.M.C. 2642

RR ME tae ee uaa hie aes l

United States Constitution _

Asticie 1, Section &, Clause 18 . 2... 25 ccc ccc sesccses 2

Pastis Th, BOC 2, Cee Fo nao icc ce ce vcs accecns 2

Statutes and Conventions

A Wns Act, 2B ULAR. BOG TOG a vk ccc eee sev cnnn i, 2

Anti-Injunction Act, 28 U.S.C. Sec. 2283............... i, 3, 5

Federal Employers Liability Act, 45 U.S.C. Sec. 51 et seq. 8

Full Faith and Credit Act, 28 U.S. Sec. 1738 ........... 4

Sams at, SB UT . Dk Ie on on os ck vc cnt wcecutvss 3

Pe ee Ee or, EG So: Serer reer er 9

Shipowners Liability (Sick and Injured Seamen) Conven-

ee i ee rs ors oa es aeee eae 3

y pk To OG | Serr eae moron mapa es Mme 2

a UO ca cu cc cede enenansvabevabavacce ca 4

p RL Be As > SRNR a nee nL ree rT. ROSA SO i, 2

Be Aes Os ca vc raw sadhana s ea eeee eee i, 3, 8

No.

In the Supreme Court

OF THE

~ United States

OCTOBER TERM, 1987

HALLIBURTON COMPANY,

OCEANEERING INTERNATIONAL, INC. and

McCLELLAND ENGINEERS, INC.,

Petitioners,

2

SHEREEN RAMONA ZIPFEL, VYNER GERARD ALBUQUERQUE,

and CHAN LUCK CHEE,

Respondents.

Petition for Writ of Certiorari to the United States

Court of Appeals for the Ninth Circuit

Petitioners pray that a Writ of Certiorari issue to review the

judgment of the United States Court of Appeals for the Ninth

Circuit, first entered in this case June 23, 1987, as to which

rehearing was denied November 24, 1987.

OPINIONS BELOW

The opinion of the United States District Court for the North-

ern District of California is reported sub nom., Sherrill v. Brinker-

hoff Maritime Drilling, 615 F. Supp. 1021, 1985 A.M.C. 2855

(N.D. Cal. 1985), and is set forth in Appendix D. The initial

opinion of the United States Court of Appeals for the Ninth

Circuit is reported, Zipfel v. Halliburton Co., 820 F.2d 1438, 1987

A.M.C. 2642, (9th Cir. 1987), and is set forth in Appendix A.

The amended opinion of the United States Court of Appeals for

2

the Ninth Circuit is reported, Zipfel v. Halliburton Co., 832 F.2d

1477 (9th Cir. 1987), and is set forth in Appendix B.

JURISDICTION

On June 23, 1987, the Court of Appeals entered its judgment

reversing so much of the decision of the District Court as enjoined

the Respondents from prosecuting their claims in another court in

the United States. A petition for rehearing was timely filed July 7,

1987, and was denied November 24, 1987. The jurisdiction of this

court is invoked under 28 U.S.C. Section 1254(1).

CONSTITUTIONAL PROVISIONS AND

STATUTES INVOLVED

United States Constitution

Article I, Section 8, Clause 18:

To make all Laws which shall be necessary and proper for

carrying into Execution the foregoing Powers, and all other

Powers vested by this Constitution in the Government of the

United States, or in any Department or Officer thereof.

Article III, Section 2, Clause | (in pertinent part):

The judicial Power shall extend .. . to all Cases of admi-

ralty and maritime Jurisdiction; . . .

Title 28 U.S.C.

Sec. 1651 (a):

The Supreme Court and all courts established by Act of

Congress may issue all writs necessary or appropriate in aid

of their respective jurisdictions and agreeable to the usages

and principles of law.

Sec. 1333 (in pertinent part):

The district courts shall have orginal jurisdiction, exclu-

sive of the courts of the States, of:

(1) Any civil case of admiralty or maritime jurisdic-

tion, saving to suitors in all cases all other remedies to

which they are otherwise entitled.

Sec. 2283:

A court of the United States may not grant an injunction

to stay proceedings in a State court except as expressly

authorized by Act of Congress, or where necessary in aid of

its jurisdiction, or to protect or effectuate its judgments.

STATEMENT OF THE CASE

These actions are based on an accident in the course of

maritime employment. They were held by the district court not to

be governed by American law. The court then dismissed them

upon the ground of forum non conveniens, finding that the

appropriate forum was in Singapore or Indonesia rather than in

the United States. No contention was made by Respondents that

the actions should instead be transferred to another district under

28 U.S.C. Sec. 1404(a) and no ground appears on which such a

contention could be urged. Respondents having then commenced

actions on the same claims in a court of Texas, the district court

enjoined the prosecution of such actions in the United States. The

Court of Appeals affirmed the holding as to choice of law and the

dismissal of the actions but reversed the injunction, asserting that

it was beyond the power of the district court because of the Anti-

Injunction Act, 28 U.S.C. Sec. 2283.

These were among several related actions filed in the United

States District Court for the Northern District of California by or

on behalf of workmen killed or injured in an air crash in

Indonesia. It was claimed that all the workmen were seamen and

members of the crew of a drilling vessel to which they were en

route. The plaintiffs invoked the Jones Act, 46 U.S.C. Sec. 688,

the Shipowners Liability (Sick and Injured Seamen) Convention

of 1936, 54 Stat. 1693, general maritime law, and state law.

Appendix B-9. Despite arising from an air crash on land the

claims are maritime and ultimately depended on the admiralty

jurisdiction.°

* The claims are asserted on the basis of employment on a vessel in

navigable waters. Such employment is mantime. See, e.g. De Lovio v

Boit, 7 Fed. Cas. 418, 444 (C.C. Mass. 1815); Union Fish Co. +

Erickson, 248 U.S. 308 (1919). Employment may give rise to maritime

4

Motions to dismiss the actions on the ground of forum non

conveniens were granted, subject to conditions, the court finding

that the appropriate forum was in Singapore or Indonesia instead

of America. Instead of complying with the conditions, Respon-

dents made service of a parallel Texas state court action. A

permanent injunction against prosecuting any action arising out of

the air crash in any court in the United States was included in the

final judgment dismissing all of the plaintiffs’ actions uncondition-

ally. Appendix F. The Texas court had not ruled upon the issue of

res judicata and the Full Faith and Credit Act’ is not involved."

The facts material to the disposition of the motions were

undisputed and were summarized by the District Court. Appendix

D-4 through D-6. The aircraft was operated by an Indonesian

corporation and chartered by Hudbay Oil (Malacca Strait) Lim-

ited (“Hudbay”) to transport employees between Singapore and

Pekanbaru, Sumatra, whence the passengers were to be trans-

ported by helicopter to the drilling barge Brinkerhoff I.

claims for accidents on land in travelling to or from work. See, e.g.,

Hopson v. Texaco, Inc., 383 U.S. 262, 1966 A.M:C. 281 (1966). Apart

from the Jones Act claims, the actions are not cognizable as federal

questions under 28 U.S.C. Sec. 1331. Romero v. International Terminal

Operating Co., 358 U.S. 354, 1959 A.M.C. 832 (1959). As the plaintiffs

are aliens and the alienage of some of the defendants is indicated by the

caption and confirmed by the allegations of the complaints, diversity is

lacking under the rule of Strawbridge v. Curtis, 7 U.S. (3 Cranch) 267

(1806); Chick Kam Choo v. Exxon Corp., 764 F.2d 1148, 1986 A.M.C.

858 (Sth Cir. 1985). Under the Jones Act the district court had

jurisdiction sufficient to consider the application of that Act. Romero,

358 U.S. at 359, 1959 A.M.C. at 836. And when a Jones Act claim is

properly alleged, the district court has jurisdiction to consider related

claims as pendent to its Jones Act jurisdiction. Romero, 358 U.S. at 381,

1959 A.M.C. at 853. But when the Jones Act was held inapplicable

there remained only the general admiralty jurisdiction over maritime

claims.

728 U.S.C. Section 1738.

* See Parsons Steel, Inc. v. First Alabama Bank, 474 U.S. __, 88 L.

Ed. 2d 877 (1986).

A)

The Brinkerhoff I is an American flag drilling barge, registered

in San Francisco, California, owned by a Delaware corporation

with its home office in San Francisco, with a contract negotiated

in Indonesia, under which she was drilling in a lease concession in

Indonesian waters.

The crews lived on board and rotated on and off at two-week

intervals and the crash occurred as men were returning to the

vessel. The aircraft was in contact with Indonesian air traffic

controllers and Indonesian authorities investigated the crash and

attributed it to pilot error and weather conditions. Appendix D-4

through D-S5.

Respondents here are plaintiffs in three of the five claims

involved in the appeal below. The district court found that

Respondent Zipfel’s decedent was employed by Halliburton Ltd.,

Respondent Chee by McClelland Engineers S.A., and Respon-

dent Albuquerque by Oceaneering International, SDN, BHD.,

each a foreign subsidiary of a Petitioner here.’ Decedent Zipfel

was British and his wife, Respondent Shereen Ramona Zipfel, is

Singaporean; Respondents Chee and Albuquerque are

Singaporean.”

The District Court held that American law, and hence the

Jones Act, applied to the American citizen employed by the

vessel owner but not to the foreign injured plaintiffs and dece-

dents. The Court of Appeals upheld the decision as to choice of

law and also as to forum non conveniens, except for the case of

the American decedent entitled to invoke the Jones Act. The

court went on, however, to reverse the injunction against the

prosecution of actions in Texas by the Respondents, as coni...ry to

the Anti-Injunction Act, 28 U.S.C. Sec. 2283, upon the ground

that the District Court’s judgments were not “judgments” within

the meaning of the third exception of that Act. In doing so the

* The Court of Appeals, probably by inadvertent omission of text,

made an error of fact and treated all the employers as subsidiaries of

Petitioner Halliburton Company. Appendix B-11.

'° The other two men were employees of the vessel owner. One was an

American and one was an Australian. Appendix B-! 1.

6

court distinguished the case of Exxon Corp. v. Chick Kam Choo,

817 F.2d 307 (Sth Cir. 1987) cert. granted US. . No.

87-505, apparently upon the ground that the injunction in that

case was itself res judicata, on the basis of a mistaken understand-

ing that a prior injunction had become final without appeal.

REASONS FOR GRANTING THE WRIT

I. The Decision Below Creates a Clear Conflict Among the

Circuits

The Court has already granted certiorari in Exxon Corp. v.

Chick Kam Choo, 817 F.2d 307 (Sth Cir. 1987) (No. 87-505 in

this Court), with which the decision below is squarely in conflict.

In Exxon the Court of Appeals upheld an injunction prohibiting

the plaintiff from prosecuting in the courts of Texas an action

upon a maritime claim which the district court had already

dismissed under the doctrine of forum non conveniens. In doing

so it necessarily held, and Judge Clark’s concurring opinion made

explicit, that the injunction was the exercise of the power to

effectuate a judgment falling within the third exception to the

Anti-Injunction Statute. Here the Court of Appeals has held to

the contrary in indistinguishable circumstances.

In reaching its conclusion, the majority in Exxon took the

“conditional view”'' that the judgment of dismissal was res

judicata. The Court of Appeals for the Ninth Circuit recognized

that an injunction may be granted to protect the res judicata

effect of a district court judgment but stated here that the district

court had decided these cases on a “procedural point’, evidently

meaning that the judgments were not res judicata. Appendix

B-25.

The Court of Appeals has taken the remarkable view that its

decision is not in conflict with Exxon. If this were to be so, some

way must be found to account for the Fifth Circuit decision

without its traversing the Ninth Circuit view of the Anti-Injunc-

tion statute. To do this, the Court of Appeals for the Ninth

'! Judge Clark joined with Judge Gee on this issue upon the condition

that it was necessary to be decided. 817 F.2d at 309, n.

Circuit posits an earlier (and presumably illegal) injunction

against Chick Kam Choo, which had not been appealed from and

was therefore final. The court then says that the injunction upheld

in Exxon was issued to enforce that earlier and binding injunc-

tion, evidently regarding such an earlier (illegal) injunction as a

judgment “on the merits”. Appendix B-25.

That view is not only illogical but erroneous in fact. The

opinion in Exxon gives no account of an earlier injunction and the

petition for certiorari and brief in opposition in this Court do not

indicate that there was any such earlier injunction. We respect-

fully suggest that this Court clearly observed the conflict between

the two cases when it granted certiorari in Exxon.

The Court of Appeals is also in conflict with other circuits as to

questions underlying its decision in this particular case. The court

proceeds on the basis that the judgments here were not “on the

merits” because they did not deal with the ultimate rights of

Respondents to recover on their claims in some court; the court

clearly means that judgments on the ground of forum non

conveniens are not res judicata. The decision is in conflict with

Pastewka v. Texaco, Inc., 565 F.2d 851, 854, 1979 A.M.C. 190,

194 (3d Cir. 1977), holding that a forum non conveniens dismis-

sal is res judicata, and also with Jn re Air Crash Disaster Near

New Orleans, La., 821 F.2d 1147, 1156-57, 1987 A.M.C. 2735,

2746-47 (Sth Cir. 1987), where the court en banc, holding that

federal standards apply to diversity cases, rejected analysis based

upon the classification of forum non conveniens as a “procedural”

matter.

II. The Court of Appeals Has Decided an Important Question

of Federal Law Which Has Not Been but Should Be Settled

by This Court

Both in cases denying and in cases upholding the power of the

district courts to enjoin the prosecution of state proceedings, this

Court has repeatedly illustrated, and in several instances explicitly

declared, the importance of the scope of the Anti-Injunction Act

because of its effect upon federal-state relations in a federal

system. Amalgamated Clothing Workers of America v. Richman

Bros. Co., 348 U.S. 511, 513 (1955); Atlantic Coast Line Rail-

road Co. v. Brotherhood of Locomotive Engineers, 398 U.S. 281,

287 (1970); Mitchum v. Foster, 407 U.S. 225, 231, 243 (1972);

Vendo Co. v. Lektro-Vend Corp., 433 U.S. 623, 626, 630 (1977);

Parsons Steel, Inc. v. First Alabama Bank., 474 U.S. ___, 88 L.

Ed. 2d 877 (1986).

Important as they are, the Court’s previous decisions have not,

either directly or by analogy, settled the question presented here.

Only two of those cases, Atlantic Coast Line Railroad Co. v.

Brotherhood of Locomotive Engineers, supra, and Parsons Steel,

Inc. v. First Alabama Bank, supra, dealt with injunctions to

“protect or effectuate” judgments under the third exception of the

Act. In both cases the injunctions could not be sustained on that

ground, in the former because it was not clear that the federal

court judgment had the meaning claimed for it and in the latter

because the injunction collided with the Full Faith and Credit Act

since the state court had already ruled that the federal court

judgment was not to be treated as res judicata. None of the cases

cited deals with the effect of a final dismissal on the ground of

forum non conveniens,'* a frequent occurrence in the United

States courts, and none deals with the jurisdiction of Jones Act

claims and other maritime claims allowed to the jurisdiction of

the states under the Savings-to- Suitors Clause.'? While the

'2 In Parsons v. Chesapeake & Ohio Railroad Co., 375 U.S. 71, 73

(1963), where a state court had dismissed an action under the Federal

Employers Liability Act, 45 U.S.C. Sec. 51 et seq. under the dogtrine of

forum non conveniens and a federal court in the same city felt thereafter

bound to grant a motion to transfer under 28 U.S.C. Sec. 1404(a), the

Court held that “principles of res judicata are not applicable to the

~situation here presented.” The Court stressed the different considera-

tions involved in the transfer and dismissal. The Court’s analysis shows

that the state court’s dismissal on the ground that there was a better

forum somewhere else did not mean that the better forum was the court

to which the federal court seized of the case was asked to transfer it.

‘>In Garrett v. Moore-McCormack Co., Inc., 317 U.S. 239, 243

(1942), where the Court rejected the view that a state court could apply

state “procedural” law as to the burden of proof, the Court said:

We do not have in this case an effort of the state court to enforce

rights claimed to be rooted in state law. The petitioner's suit rested

Court has declined to create an exception to the Anti-Injunction

Act for all fields preempted by Congress, Amalgamated Clothing

Workers of America v. Richman Bros. Co., supra, it has not

considered the effect of a prior district court judgment on a

maritime claim, where the primacy of the federal courts is

established by the Constitution and the states are recognized to be

bound by the constitutional doctrine of uniformity in the exercise

of the limited jurisdiction conceded to them.

The question presented here should be settled by this Court

because of its practical, as well as conceptual, impact. Members

of the Court no doubt recognize that the occasions for the federal

courts to consider cases under the doctrine of forum non con-

veniens have increased.'* And cases of a certain sort seen on the

record at a given moment are usually an indication of numerous

others unseen. In an age of rapid travel and far-ranging interna-

tional enterprise,'° as well as internationally enterprising lawyers,

forum-shopping flourishes on a grand scale. And if it is an evil in

the selection of an initial court, it is a far greater evil in the resort

to a second court to overrule or ignore the first.

The Court has presumably already recognized that the question

presented should be settled, by granting certiorari in Chick Kam

Choo v. Exxon Corp., No. 87-505. The Court of Appeals in

Exxon, 817 F.2d at 324, noted and disapproved another, similar

case in Louisiana, Kassapas v. Arkon Shipping Agency, Inc., 485

So.2d 565 (La. App. Sth Cir. 1986), writ denied, 488 So.2d 203

(La. 1986) cert. denied, ___. U.S. ___.,, 93 L. Ed. 2d 372

on asserted rights granted by federal law and the state courts so

treated it. Jurisdiction of the state court to try this case rests solely

upon Sec. 33 of the Jones Act and upon statutes traceable to the

Judiciary Act of 1789 which “in all civil causes of admiralty and

maritime jurisdiction” saves to suitors “the right of a common-law

remedy where the common law is competent to give it...” [foot-

notes omitted J.

‘* See, e.g., instances cited in Piper Aircraft Co. v. Reyno, 454 U.S.

235, 1982 A.M.C. 214 (1981).

> See, e.g., The Bremen v. Zapata Offshore Co., 407 U.S. 1, 8-9, 1972

A.M.C. 1407, 1413 (1972).

10

(1986).'° In addition to the instant case in the Ninth Circuit

there is now pending there a case, Villar v. Crowley Maritime

Corp., No. 86-2381, in which the plaintiff, represented by the

same counsel as Respondents here and Petitioner in Chick Kam

Choo, after dismissal by the district court in San Francisco and

affirmance on appeal,'’ filed the same suit in the Superior Court

in the same city and was enjoined from prosecuting it.

The decision of the Court of Appeals surely does not represent

a jurisprudentially satisfactory settlement of the question. In

authorizing suits in the state courts on certain maritime claims

Congress presumably sought to save suitors from having to

journey to inconvenient federal courts; it is at least very question-

able whether the intention was that the suitor, after getting an

unfavorable answer in the admiralty court, should be encouraged

to seek a more favorable one in a state court. That would go far

toward allowing the statutory exception to swallow the rule. The

Court of Appeals, without any apparent analysis of the signifi-

cance of the judgments before it and the weight which ought to be

given to such judgments or to the relationship of the federal and

state courts in the field of maritime claims, disposed of the matter

lightly by saying that the judgment had turned on a “procedural

point” and not “on the merits”. Appendix B-25.

This Court has rejected the use of the epithet “procedural” as a

means of deciding cases. In Guaranty Trust Co. v. York, 326 US.

99, 108 (1945), the Court clearly recognized the infirmity of such

analysis:

Matters of “substance” and matters of “procedure” are

much talked about in the books as though they defined a

great divide cutting across the whole domain of law. But, of

course, “substance” and “procedure” are the same key words

to very different problems. Neither “substance” nor “proce-

dure” represents the same in variance. Each implies different

'6 The case was No. 86-195 on the docket of this Court.

'7 Villar v. Crowley Maritime Corp., 782 F.2d 1478, 1987 A.M.C. 881

(9th Cir. 1986).

1 |

variables depending upon the particular problem for which it

is used.

One of the cases with which the court illustrated the point was

Garrett v. Moore-McCormack Co., 317 U.S. 239, 248-49 (1942),

a maritime case which had come up through the state courts,

where this Court held that a burden of proof, however it might be

thought to be procedural, had such consequences that the federal

rule must be used by the state court.

In Hanna v. Plumer, 380 U.S. 460 (1965), the Court reaf-

firmed its view that the dichotomy between “substance” and

‘“* procedure” was not adequate for deciding cases, while making

clear that the criterion of “outcome-determination” is also not a

universal rule. In both Guaranty Trust and Hanna the Court

stressed the discouragement of forum-shopping as a ground for

looking beyond the common epithets in deciding whether federal

or state standards should be applied. Other courts of appeals have

applied the principle of Guaranty Trust and Hanna in declining to

treat forum non conveniens as a conclusion merely “procedural”

or unworthy of the dignity of res judicata. E.g., in re Air Crash

Disaster Near New Orleans, La., 821 F.2d 1147, 1156-57, 1987

A.M.C. 2735, 2746-47 (Sth Cir. 1987); Pastewka v. Texaco, Inc.,

565 F.2d 851, 854, 1979 A.M.C. 190, 194 (3d Cir. 1977).

Guaranty Trust and Hanna were cases involving the interplay

of federal and state legislative jurisdiction as affecting actions in

the federal courts and they arose in a context very closely related

to the situation here, which involves the effects of the resulting

judgments rather than the laws and rules to be applied in reaching

them. The Guaranty Trust and Hanna cases indicate that neither

the disparaging adjective “procedural” nor the test of outcome-

determination should be used to decide the quality of a judgment

for the purpose of applying it as res judicata.

The judgments below did not, after all, have the mere effect of

a sanction for the violation of a court rule, allowing the plaintiffs

to refile in compliance with the rule or in another court under

different rules. Although granted for different reasons and on a

different showing, the judgments had the same effect as though

the Respondents’ cases had been dismissed for lack of jurisdic-

APPENDIX A

REPRINTED WITH CORRECTIONS JUNE 25, 1987

FOR PUBLICATION

UNITED STATES COURT OF APPEALS |

FOR THE NINTH CIRCUIT |

Nos. 86-1815, 86-1832, 86-1834, 86-1835, 86-1836

D.C. Nos.

CV-83-0603-WWS, CV-83-0604-W WS, CV-83-0605-WWS, |

CV-83-0606-W WS, CV-83-0607-WWS |

OPINION

SHEREEN RAMONA ZIPFEL, Individually and as Administratrix

of Ian Charles Zipfel, deceased,

Plaintiff-Appellant,

V.

HALLIBURTON COMPANY; ATLANTIC RICHFIELD COMPANY;

CROWLEY MARITIME CORPORATION; BRINKERHOFF MARITIME

DRILLING, INC.; CONTINENTAL OIL COMPANY (CONOCO,

INc.); HUDSON Bay OIL & GAS COMPANY, LTD.; HUDBAY

OiL, Ltp. (INDONESIA); BRINKERHOFF MARITIME DRILLING,

Ptp, Ltp.; HuUpBAY OIL (MALACCA), LTp.; DOME PETRO-

LEUM, LTp.; DOME PETROLEUM CORPORATION; ARCO OIL AND

GAS CORPORATION; PT AIRFAST SERVICES INDONESIA; and

EXQUISITOR HELICOPTER CORPORATION,

Defendants-Appellees.

TEN FONG CRAIG, Individually and as Administratrix of the

Estate of William Henry Craig, deceased,

Plaintiff-Appellant,

Wi

ATLANTIC RICHFIELD COMPANY; CROWLEY MARITIME Cor-

PORATION; BRINKERHOFF MARITIME DRILLING, INC.; CONTI-

NENTAL OIL COMPANY (CONOCO, INC.); HUDSON Bay OIL &

Gas COMPANY. LTp.; HUDBAY OIL, LTD. (INDONESIA); BRIN-

KERHOFF MARITIME DRILLING, S.A.; BRINKERHOFF MARITIME

DRILLING, PTE, Ltp.; HUDBAY OIL (MALACCA), LTD.; DOME

A-2

PETROLEUM LTtp.: DOME PETROLEUM CORPORATION; PT

AIRFAST SERVICES INDONESIA; and EXQUISITOR HELICOPTER

CORPORATION,

Defendants-Appellees.

CHAN LuCK CHEE,

Plaintiff-Appellant,

V.

McCLELLAND ENGINEERS, INC.; MCCLELLAND ENGINEERS,

S.A.; MCCLELLAND ENGINEERS SDN. BHD.; HALLIBURTON

COMPANY; ATLANTIC RICHFIELD COMPANY; CROWLEY MARI-

TIME CORPORATION; BRINKERHOFF MARITIME DRILLING, INC.;

CONTINENTAL O1L COMPANY (CONOCO, INC.); HUDSON BAY

Oi. & GAS COMPANY, LTD.; HuUpDBAY OIL, LTD. (INDONESIA);

BRINKERHOFF MARITIME DRILLING, S.A.; BRINKERHOFF MAR-

ITIME DRILLING, PTE, Ltp.; DoME PETROLEUM, LTD.; DOME

PETROLEUM CORPORATION; ARCO OIL AND GAS CORPORA-

TION; PT AIRFAST SERVICES INDONESIA; and EXQUISITOR

HELICOPTER CORPORATION,

Defendants-Appellees.

VYNER GERARD ALBUQUERQUE,

Plaintiff-Appellant,

Vv.

OCEANEERING INTERNATIONAL, INC.; OCEANEERING INTER-

NATIONAL, SDN, BHD.; HALLIBURTON COMPANY; ATLANTIC

RICHFIELD COMPANY; CROWLEY MARITIME CORPORATION,

BRINKERHOFF MARITIME DRILLING, INC.; CONTINENTAL OIL

ComPANY (Conoco, INC.); HUDSON Bay OIL & Gas Com-

PANY, LTp.; HUDBAY OIL, LTD. (INDONESIA); BRINKERHOFF

MARITIME DRILLING, PTE, Ltp.; HUDBAY OIL (MALACCA),

Ltp.; DoME PETROLEUM LTD.; DOME PETROLEUM CORPORA-

TION: PT AIRFAST SERVICES INDONESIA; and EXQUISITOR

HELICOPTER CORPORATION,

Defendants-Appellees.

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PATRICK PAUL GRUNKE,

Plaintiff-Appellant,

V.

ATLANTIC RICHFIELD COMPANY; CROWLEY MARITIME Cor-

PORATION; BRINKERHOFF MARITIME DRILLING, INC.; CONTI-

NENTAL OIL COMPANY (CONOCO, INC.); HUDSON BAy OIL &

Gas COMPANY, LTbD.; HUDBAY OIL, LTD. (INDONESIA); BRIN-

KERHOFF MARITIME DRILLING, S.A.; BRINKERHOFF MARITIME

DRILLING, PTE, Ltp.; HUDBAY OIL (MALACCA), LTp.; DOME

PETROLEUM LTD.; DOME PETROLEUM CORPORATION; ARCO

OIL AND GAS CORPORATION; PT AIRFAST SERVICES INDONE-

SIA; and ExQUISITOR HELICOPTER CORPORATION,

Defendants-Appellees.

Argued and Submitted

February 9, 1987—San Francisco, California

Filed June 23, 1987

Before: Mary M. Schroeder, Charles Wiggins and David R.

Thompson, Circuit Judges.

Opinion by Judge Thompson

Appeal fom the United States District Court

for the Northern District of California

William W. Schwarzer, District Judge, Presiding

SUMMARY

Courts and Procedures/ Injunctions

Appeal from dismissal. Affirmed in part, reversed in part,

vacated in part, modified and remanded.

These related but onconsolidated actions were filed in the

district court by or on behalf of American and foreign seamen

who were killed or injured in an air crash in Indonesia. Motions to

dismiss the actions on the ground of forum non conveniens were

filed and denied. Upon reconsideration, another judge of the same

court granted the motions and dismissed all of the cases, subject

A-4

to conditions. The district court then restrained, and later perma-

nently enjoined, the plaintiffs and their attorneys from prosecuting

any action arising out of the air crash in any court in the United

States. The final judgment dismissed all of the appellants’ actions,

unconditionally, on the ground of forum non conveniens. This

court affirms the district court’s dismissal of the foreign seamen’s

claims and reverses the dismissal of the claim filed on behalf of

the deceased American seaman. This court vacates that part of

the permanent injunction enjoining the foreign seamen from

prosecuting their claims in state court. This court modifies and

affirms the grant of the permanent injunction as it pertains to the

claim filed on behalf of the American seaman.

Appellants’ claims arise out of an airplane crash in Indonesia.

At the time of the crash, the airplane was transporting crew

members of the oil drilling vessel, Brinkerhoff |, from Singapore

to Indonesia, where the crew members were to be flown by

helicopter to the vessel.

Judge Schwarzer chose to reconsider Judge Aguilar’s denial of

the appellees’ forum non conveniens motions because, in his view,

Judge Aguilar had failed to consider relevant Supreme Court

precedent. Judge Schwarzer did not abuse his discretion by

deciding to reconsider Judge Aguilar’s prior ruling. This court

reviews under the clearly erroneous standard the district court's

findings of fact underlying its choice of law determination. This

court treats all of the injured and deceased crew members as

seamen. The findings of the district court support its conclusion

that the drilling vessel qualification applies to the Brinkerhoff I.

In determining whether the Jones Act applies to the claims of the

foreign seamen, the district court focused on the factors which

received greater weight in the drilling mg context. These factors

point toward the application of foreign law to these claims. This

court agrees with the district court’s conclusion that foreign law,

not American law, applies to the claims of the foreign seamen. It

is conceded that American law applies to the claim on behalf of

the deceased American seaman. The appellees have established

that Singapore and Indonesia are satisfactory alternative fora.

This court concludes that a satisfactory alternative forum exists

for the resolution of these claims of the foreign seamen. This

A-5

court agrees with the district court’s conclusion that the balance

of the private interest factors tips in favor of dismissing, for forum

non conveniens, the foreign seamen’s lawsuits. The public interest

factors weigh in favor of dismissal of the claims. The district court

did not abuse its discretion in dismissing the foreign seamen’s

lawsuits for forum non conveniens, subject to the conditions

which the district court imposed. The fact that the American

seaman’s claim has been filed in an American court on behalf of

an American is a factor which points toward retention of the

American seaman’s case. What distinguishes the American sea-

man’s claim from the claims of the foreign seamen, is the

concession of the parties and the conclusion of the district court

that the Jones Act applies to the claim for the deceased Ameri-

can. This court finds the decisions of other circuits which pre-

cludes dismissal of a Jones Act case for forum non conveniens to

be persuasive. In view of the Supreme Court’s comments as to the

unavailability of the forum non conveniens doctrine in Federal

Employers’ Liability Act (FELA) cases, the degree of similarity

between the specific venue provisions under the Jones Act and

under the FELA, and the incorporation of the FELA into the

Jones Act, this court believes that the forum non conveniens

doctrine should be unavailable as a ground for dismissal under the

Jones Act as it is under the FELA. This court holds that when the

Jones Act applies to a seaman’s claim, that claim may not be

dismissed on the ground of forum non conveniens. When the

district court dismissed the appellants’ lawsuits for forum non

conveniens, the appellants who did not settle their claims reacti-

vated lawsuits they had previously filed in state court. In response

to this, the district court enjoined the appellants and their attor-

neys from filing actions in any court in the United States arising

out of the air crash. The first exception to the Anti-Injunction Act

does not apply here, because there is no express statutory authori-

zation for an injunction in this situation. The second exception

applies to the American seaman’s lawsuit, because, under this

court's holding in this case, the district court will retain jurisdic-

tion over that lawsuit. This exception does not apply to the foreign

seamen’s lawsuits because the district court no longer had juris-

diction over those suits. The third exception similarly does not

support the district court’s injunction. The grant of the injunction

A-6

against the foreign seamen prosecuting their lawsuits in state

court violated the Anti-Injunction Act and was an abuse of

discretion.

COUNSEL

Benton Musselwhite, Houston, Texas, for the plaintiffs-

appellants.

Earnest N. Reddick, San Francisco, California, for the defend-

ants-appellees Crowley Maritime Corp., Brinkerhoff Maritime

Drilling Corp., Brinkerhoff Maritime Drilling Corp., S.A., and

Brinkerhoff Maritime Drilling Corp. PTE, LTD; Graydon S.

Staring, San Francisco, California, for the defendant-appellee

Halliburton Co.; Steven M. Perl, San Francisco, California, for

the defendant-appellee McClelland Engineers, Inc.

Elliot L. Bien, San Francisco, California, for the defendant-

appellee Oceaneering International, Inc.; James M. Derr, Los

Angeles, California, for the defendants-appellees Atlantic Rich-

field Co. and Arco Oil & Gas Corp.; Robert J. Finan, San

Francisco, California, for the defendant-appellee Conoco, Inc.

OPINION

THOMPSON, Circuit Judge:

These related but unconsolidated actions were filed in the

United States District Court for the Northern District of Califor-

nia by or on behalf of American and foreign seamen who were

killed or injured in an air crash in Indonesia. The actions were

filed under the Jones Act, 46 U.S.C. § 688, the Shipowners

Liability (Sick and Injured Seamen) Convention of 1936, 54

Stat. 1693, general maritime law, and state law. Motions to

dismiss the actions on the ground of forum non conveniens were

filed and denied. Upon reconsideration, another judge of the same

court granted the motions and dismissed all of the cases, subject

to conditions. Sherrill v. Brinkerhoff Maritime Drilling, 615 F.

Supp. 1021 (N.D. Cal. 1985). The dismissal order was filed

August 12, 1985. It provided in part that the order would become

final “as to any plaintiff upon that plaintiff's failure to have filed a

A-7

new action [in Indonesia or Singapore] upon the expiration of

ninety days from the date of filing this order.” No plaintiff filed

such an action. Instead, a parallel Texas state court action which

some of the plaintiffs had previously filed was reactivated. The

district court then restrained, and later permanently enjoined, the

plaintiffs and their attorneys from prosecuting any action arising

out of the air crash in any court in the United States. This

permanent injunction was included in a final judgment which the

district court entered January 31, 1986. The final judgment

dismissed all of the plaintiffs’ actions, unconditionally, on the

ground of forum non conveniens. A number of the cases originally

filed were settled. Five cases remain, and are involved in this

appeal.

We have jurisdiction under 28 U.S.C. § 1291. We affirm the

(listrict court’s dismissal of the foreign seamen’s claims. We

reverse the dismissal of the claim filed on behalf of the deceased

American seaman. We vacate that part of the permanent injunc-

tion enjoining the foreign seamen from prosecuting their claims in

State court. We modify and affirm the grant of the permanent

injunction as it pertains to the claim filed on behalf of the

American seaman.

FACTS AND PROCEEDINGS

The plaintiffs’ claims arise out of a 1981 airplane crash at

Simpang Tiga Airport in Indonesia. The airplane was operated by

P.T. Airfast Services, an Indonesian corporation, and chartered

by Hudbay Oil, an Indonesian subsidiary of a Canadian corpora-

tion. At the time of the crash, the airplane was transporting crew

members of the oil drilling vessel, Brinkerhoff I, from Singapore

to Indonesia, where the crew members were to be flown by

helicopter to the vessel. The Brinkerhoff I is an American flag

vessel. For approximately nineteen months prior to the crash, this

vessel had operated in Far Eastern waters near Indonesia and

Singapore. As the district court observed:

It is not disputed that the operative facts on which liability

and damages are premised occurred in Indonesia, and to a

lesser extent, in Singapore.

A-8

These include the maintenance and operation of the aircraft

by Airfast, the chartering of the aircraft by Hudbay, and the

actions of the crew and the Indonesian air traffic controllers.

Eye witnesses and other knowledgeable persons are located

there. Records and physical evidence relating to the opera-

tion and crash of the aircraft, the activities of the defendants,

the injuries suffered by plaintiffs, and the post-accident

investigation are also located there. It may be, as plaintiffs

contend, that other evidence is scattered around the world,

but none of it is shown to be located in this district. That the

bulk of it is located in Singapore or Indonesia is demon-

strated by plaintiffs’ consolidated deposition notice...

Sherrill, 615 F.Supp. at 1031-32.

The Brinkerhoff I is owned by Brinkerhoff Maritime Drilling

Corporation (“BMD”), a Delaware corporation with home offices

in San Francisco. BMD’s base of corporate operations was San

Francisco, California, and the Brinkerhoff I’s base of operations

was either Singapore or Indonesia, or both.' The crew members

whose claims are involved in this appeal were employees, respec-

tively, of some of the defendants. BMD employed Grunke and

decedent Craig; Halliburton Ltd. and Halliburton Inc. employed

decedent Zipfel; McClelland S.A. and McClelland Engineering

Inc. employed Chee; and P.T. Calmarine and Oceaneering em-

ployed Albuquerque. Decedent Craig was an American and his

wife, plaintiff Ten Fong Craig, is Singaporean; decedent Zipfel

was British and his wife, plaintiff Shereen Ramona Zipfel, is

Singaporean; plaintiffs Chee and Albuquerque are Singaporean;

and plaintiff Grunke is Australian.

The cases were originally assigned to District Judge Aguilar.

The defendants moved to dismiss al! of the actions on the ground

' The specific location of the Brinkerhoff I’s operations was deter-

mined by Atlantic Richfield Indonesia, Inc. (“ARII”), pursuant to a

Day-Work Drilling Contract between BMD and ARII. Although plain-

tiffs make much of American choice of law and forum clauses in this

contract, it is not relevant to this action that BMD and ARII agreed to

resolve conflicts between themselves in America. See Bailey v. Dolphin

International, Inc., 697 F.2d 1268, 1276, n.24 (Sth Cir. 1983).

A-9

of forum non conveniens. Judge Aguilar concluded that American

law applied to all of the cases and denied the motions. The cases

were subsequently reassigned to District Judge Schwarzer. The

defendants renewed their forum on conveniens motions. Judge

Schwarzer conciuded that American law, and consequently the

Jones Act, applied only to the claim of the American crew

member, and foreign law applied to the claims of the foreign crew

members. He then dismissed all of the cases on the ground of

forum non conveniens, subject to conditions.” The permanent

injunction and final judgment of dismissal followed.

DISCUSSION

A. The District Court’s Reconsideration of Previous Denial of

Motion

We review for abuse of discretion a district judge’s decision to

reconsider an interlocutory order by another judge of the same

court. Castner v. First National Bank, 278 F.2d 376, 380 (9th Cir.

1960). In Castner we stated that the second judge does not

conscientiously carry out his judicial function “if he permits what

he believes to be a prior erroneous ruling to control the case.” 278

F.2d at 380.

Judge Schwarzer chose to reconsider Judge Aguilar’s denial of

the defendants’ forum non conveniens motions because, in his

view, Judge Aguilar had failed to consider relevant Supreme

Court precedent, including the Supreme Court’s decision in Piper

Aircraft Co. v. Reyno, 454 U.S. 235 (1981), and has failed to

follow relevant Ninth Circuit precedent, including our decision in

Phillips v. Amoco Trinidad Oil Co., 632 F.2d 82 (9th Cir. 1980),

cert. denied sub nom., Romilly v. Amoco Trinidad Oil Co., 451

U.S. 920 (1981). As we stated in Castner, “we are not concerned

at this stage with whether the second judge is in fact correct, but

> The conditions of dismissal were that the defendants (1) submit to

the foreign court’s jurisdiction, (2) waive any statute of limitations

defenses, (3) make witnesses available, (4) not object to use of

discovery materials and (5) agree to satisfy any judgment entered

against them.

A-10

whether he was justified in reviewing the prior judge's ruling at

all. [The second judge’s] substantive ruling may be, as a matter

of law, erroneous, yet his right and power to [reconsider the pnor

judge’s interlocutory ruling] is perfectly justified as a matter of

discretion.” Castner, 278 F.2d at 380-81. Judge Schwarzer did not

abuse this discretion by deciding to reconsider Judge Aguilar’s

prior ruling.

B. The District Court's Forum Non Conveniens Dismissal

Order

|. Standard of Review

We review for abuse of discretion a district court’s dismissal of

a case on the ground of forum non conveniens. Piper, 454 U.S. at

237; Pereira v. Utah Transport, Inc., 764 F.2d 686, 690 (9th Cir.

1985). cert. dismissed, 106 S. Ct. 1253 (1986).

The forum non conveniens determination is committed to

the sound discretion of the trial court. It may be reversed

only when there has been a clear abuse of discretion; where

the court has considered all relevant public and private

interest factors, and where its balancing of these factors is

reasonable, its decision deserves substantial deference.

Piper, 454 U.S. at 257 (citations omitted).

Before dismissing a case for forum non conveniens, a district

court must first make a choice of law determination.’ Pereira, 764

F.2d at 688. We review the district court’s choice of law determi-

nation de novo. /d.; Phillips, 632 F.2d at 84. We review under the

clearly erroneous standard the district court’s findings of fact

>The Second Circuit has stated that choice of law determination is

not invoived in a forum non conveniens analysis. Cruz v. Maritime Co. of

Phillippines, 702 F.2d 47, 48 (2nd Cir. 1983) (per curiam). The Second

Circuit stands alone in this view. See Nicol v. Gulf Fleet Supply Vessels,

Inc., 743 F.2d 289, 292-93 (Sth Cir. 1984); Needham v. Phillips

Petroleam Co. of Norway, 719 F.2d 1481, 1483 (10th Cir. 1983),

Szumlicz v. Norwegian American Line, Inc., 698 F.2d 1192, 1195 (11th

Cir. 1983). See also Edelman, Forum non Conveniens: [ts Application in

Admiralty Law, 15 J. of Maritime Law and Commerce 517, 529-32

(1984)

A-11

underlying its choice of law determination. Villar v. Crowley

Maritime Corp., 782 F.2d 1478, 1479-80 (9th Cir. 1986).

2. Choice of Law

a. The “Seaman Status” Requirement

For the Jones Act to apply, “seaman” status must be estab-

lished. Estate of Wenzel v. Seaward Marine Services, Inc., 709

F.2d 1326, 1327 (9th Cir. 1983). The district court assumed the

injured and deceased crew members were “seaman.” This as-

sumption is not challenged on appeal. Accordingly, we treat all of

the injured and deceased crew members as “seamen.”

b. Analysis

The Supreme Court in Lauritzen v. Larsen, 345 U.S. 571, 583-

92 (1953) listed seven factors to be considered in determining

whether 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) Jaw of the forum. In Hellenic Lines, Ltd. v.

Rhoditis, 398 U.S. 306, 308-309 (1970), the Court added an

eighth factor: the shipowner’s base of operations.’ In Rhoditis, the

Court emphasized that the factors should not be applied in a

mechanical fashion, and that the list is not exhaustive. /d.

(i) The “Drilling Vessel” Qualification

In cases involving typical “blue-water” vessels “plying interna-

tional waters,” the law of the flag is of “cardinal importance.”

Lauritzen, 345 U.S. at 584. “[T]he law of the flag [is applied] on

the pragmatic basis that there must be some law on shipboard,

that it cannot change at every change of waters, and no experi-

ence shows a better rule then that of the state that owns her.” /d.

at 585. For this reason, “the weight given to the ensign overbears

* The analysis for determining whether the Jones Act applies to these

claims is also controlling on the issue whether to apply American

mantime law. Romero v. International Terminal Operating Co., 358

U.S. 354 (1959).

A-12

most other connecting events in determining applicable law”

aboard traditional vessels. Jd.

In cases involving atypical vessels such as semi-submersible or

floating oil drilling vessels, however, courts do not give the law of

the flag controlling weight; rather, other factors are emphasized.

Koke v. Phillips Petroleum Co., 730 F.2d 211, 219 (Sth Cir.

1984); Phillips, 632 F.2d at 86-87. The place of the injury, the

domicile of the injured person and the location where the employ-

ment contract was entered into take on greater significance. Koke,

730 F.2d at 219; Phillips, 632 F.2d at 86-87. The base of the

vessel’s day-to-day operations is considered to be more important

than the location of the corporate headquarters. Phillips, 632 F.2d

at 88.

Plaintiffs argue that the drilling vessel qualification should not

apply to the Brinkerhoff I because it was not a stationary drilling

rig.. Although Phillips involved a drilling rig which remained in

one location for several years, the drilling rig analysis has been

applied to vessels which do not remain in a single frxed location.

In Koke, 730 F.2d at 219, the Fifth Circuit applied the drilling ng

analysis to a non-stationary drilling vessel which could move

under its own power. The Koke court described the vessel in these

words:

While the Sedco/Phillips SS certainly has greater mobility

than a fixed rig which may remain in place for several years,

it was not, and was not designed to function as, a vessel

“plying the seas” in the traditional sense. It is a semi-

> Between 1979 and February 1983, the Brinkerhoff I operated at the

following locations:

June 1979-Sept. 1979 South China Sea

Sept. 1979-Nov. 1979 Singapore Harbor

Nov. 1979-April 1981 Java Sea

April 1981-June 1981 Malacca Straits

June 1981 To Singapore Harbor for ten days

of repairs

June 1981-Feb. 1983 Java Sea

The airplane crash out of which these cases arose occurred April 28,

1981.

A-13

submersible platform that rests on columns attached to

flotation chambers. Its movements occur within a specific

and limited geographical area. Further, when travel over long

distances is required, it is apparaently towed to a loca-

tion....

Id.

The district court found that the Brinkerhoff I was unable to

move under its own power, had to be towed by other vessels when

moved, and had remained for long periods of time prior to the

accident at only a few drilling locations in the general vicinity of

Indonesia. Sherrill, 615 F. Supp. at 1027-28. These findings

support the district court’s conclusion that the drilling vessel

qualification applies to the Brinkerhoff I. Koke, 730 F.2d at 219.

(ii) Applying the Choice of Law Factors

The applicability of the Jones Act to the claim for the death of

the American seaman was not disputed. Accordingly, the district

court determined that the Jones Act applied to his claim. This

determination is not challenged on appeal.°

In determining whether the Jones Act applies to the claims of

the foreign seamen, the district court focused on the factors which

receive greater weight in the drilling rig context. These factors

point toward the application of foreign law to these claims. The

place of the alleged wrongful act was Indonesia, the base of

operations was Indonesia or, to a lesser extent, Singapore, and the

employment contracts or other hiring arrangements were made in

foreign locations. Moreover, the allegiance of the injured foreign

seamen is foreign and a foreign forum is accessible to them.

While other factors point toward application of American law

(the law of the flag, the allegiance of the defendant shipowner,

the corporate headquarters of the defendant shipowner, and the

law of the forum), these factors are of lesser importance in a

choice of law analysis where the vessel is a drilling rig as opposed

* That all the claims in this case arise out of one occurrence does not

require the application of uniform law to the claims of plaintiffs of

differing nationalities. /n re Ocean Ranger Sinking Off Newfoundland on

February 15, 1982, 589 F. Supp. 302, 320 and n.21 (E.D. La. 1984).

A-14

to a typical blue-water vessel plying international waters. Koke,

730 F.2d at 219-20; Phillips, 632 F.2d at 86-88. The district court

concluded that foreign law, not American law, applies to the

claims of the foreign seamen. We agree.

3. Forum Non Conveniens Analysis

Having determined that foreign law applies to the claims of the

foreign seamen, and it having been conceded that American law

applies to the claim on behalf of the deceased American seaman,

we now consider whether the district court erred in dismissing all

of the claims for forum non conveniens. We consider separately

the claims of the foreign seamen and the claim on behalf of the

deceased American seaman.

a. The Foreign Seamen

i. Availability of an Alternative Forum

At the outset of any forum non conveniens inquiry,

the court must determine whether there exists an alter-

native forum. Ordinarily, this requirement will be satis-

fied when the defendant is “amenable to process” in the

other jurisdiction. [Gulf Oil Corp. v.] Gilbert. 330 US.

[S01,] 506-507 [ (1947) ]. In rare circumstances, how-

ever, where the remedy offered by the other forum is

clearly unsatisfactory, the other forum may not be an

adequate alternative, and the initial requirement may

not be satisfied. Thus, for example, dismissal would not

be appropriate where the alternative forum does not

permit litigation of the subject matter of the dispute.

(citation omitted).

Piper, 454 U.S. at 254, n.22.

The defendants bear the burden of proving the existence of an

adequate alternative forum. Cheng v. Boeing Co., 708 F.2d 1406,

1411 (9th Cir.), cert. denied sub nom. Lui Su Nai-Chao v. Boeing

Co., 464 U.S. 1017 (1983). They carried this burden. As to

Singapore, the defendants submitted affidavits and declarations

which showed that the courts of Singapore have jurisdiction over

parties submitting to their jurisdiction, which submission may be

by consent; that the defendants may waive the statute of limita-

A-15

tions; that discovery of documents and interrogatories are availa-

ble, but depositions are allowed only in certain circumstances;

that witnesses may be subpoenaed within Singapore; that Singa-

pore permits third party indemnity claims; that Singapore has

adopted English common law with respect to claims for personal

injury and English law generally with respect to air transport

cases, and has a wrongful death statute.

As to Indonesia, the defendants’ affidavits and declarations

established that Indonesian and foreign parties may submit to the

jurisdiction of Indonesian courts by written consent; that under

the Indonesian Civil Code, defendants may waive the statute of

limitations; that the court can compel the attendance of witnesses;

and that third party indemnity claims are permitted. These

affidavits and declarations further showed that Indonesian courts

would apply Indonesian law, and remedies would be available to

the injured seamen and their survivors under Indonesia’s Work-

men’s Compensation Law, under the Indonesian Civil Code for

Negligence, under the Indonesian Carriage by Air Act, and under

the Warsaw Convention.

The affidavits which the plaintiffs filed in the district court were

insufficient to counter significantly the affidavits and declarations

filed on behalf of the defendants. The plaintiffs, however, have

now submitted supplemental affidavits which they ask us to

consider for the first time on appeal. They contend these supple-

mental affidavits show that neither Singapore nor Indonesia is a

satisfactory alternative forum. Normally, we will not permit the

record on appeal to be supplemented with evidence not presented

to the district court. Karmun v. Commissioner, 749 F.2d 567, 570

(9th Cir. 1984), cert. denied, 106 S. Ct. 66 (1985). See Fed. R.

App. P. 10(a); Ninth Circuit Rules 4(a), 4(b) and 13(a)(1).

However, even if we were to consider the plaintiffs’ proffered

affidavits, we would still agree with the district court that the

defendants have established that Singapore and Indonesia are

satisfactory alternative fora.’ Such alternative fora may not pro-

’The defendants request that sanctions be imposed against the

plaintiffs for attempting to submit supplemental affidavits on appeal.

The request is denied.

A-16

an American court, but the remedies provided are not “so clearly

inadequate or unsatisfactory that [there] is no remedy at all.”

Piper, 454 U.S. at 254. The plaintiffs’ “potential damages award

may be smaller, [but] there is no danger that they will be

deprived of any remedy or treated unfairly.” Jd. at 255. Accord-

ingly, we conclude that a satisfactory alternative forum exists for

the resolution of these claims of the foreign seamen.

ii. Private and Public Interest Factors

We have determined that foreign law is applicable to the c!aims

of the foreign seamen, and that satisfactory alternative fora exist

for the resolution of these claims. We now consider, and balance,

the private interest and public interest factors described by the

Supreme Court in Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 508

(1947). We listed these factors in Pereira:

The private interest factors include: (1) relative ease of

access to sources of proof; (2) availability of compulsory

process for attendance of unwilling witnesses, and cost of

obtaining attendance of willing witnesses; (3) possibility of

viewing subject premises; (4) all other factors that render

trial of the case expeditious and inexpensive. (citation

omitted).

The public interest factors include: (1) administrative

difficulties flowing from court congestion; (2) imposition of

jury duty on the people of a community that has no relation

to the litigation; (3) local interest in having localized contro-

versies decided at home; (4) the interest in having a diversity

case tried in a forum familiar with the law that governs the

action; (5) the avoidance of unnecessary problems in con-

flicts of law. (citation omitted).

Pereira at 690.

(a) The Private Interest Factors

In applying the private interest factors to the foreign seamen’s

claims, the district court noted that access to the sources of proof

clearly pointed to trial in Singapore or Indonesia. Most of the

evidence and witnesses are located at or near the crash site in

~ A-17

Indonesia or the airport in Singapore where the airplane was

serviced and prepared for take-off.° The district court further

noted that none of the evidence or witnesses was located in

California, and that none of the material witnesses was subject to

compulsory process in the district court, whereas many were

located in Indonesia and Singapore and would be subject to

process in those courts. Although plaintiffs have agreed to stipu-

late that they will pay all the costs of bringing these witnesses to

the United States, they cannot assure that the witnesses will be

willing to make this journey. The district court also noted that it

may not be able to acquire personal jurisdiction over potential

third-party defendants such as Airfast and the government of

Indonesia. The district court concluded that the balance of the

private interest factors tips in favor of dismissing, for forum non

conveniens, the foreign seamen’s lawsuits. We agree.

(b) The Public Interest Factors

In its consideration of the public interest factors, the district

court found that the foreign seamen’s lawsuits lacked a significant

connection with the district court forum; that California had no

interest in the actions; that the lawsuits would impose a burden on

the district court’s docket and would impede the ability of local

litigants to get their cases to trial; that it would be a burden to the

people of the community to have to sit as jurors on the cases; and

that the application of foreign law in a foreign forum would not be

inconsistent with the convenience of the foreign seamen. These

findings weigh in favor of dismissal of the claims.

We conclude that the district court did not abuse its discretion

in dismissing the foreign seamen’s lawsuits for forum non con-

veniens, subject to the conditions which the district court im-

posed. See Pereira, 764 F.2d at 690 (approving similar

conditions); Koke, 730 F.2d at 214 (same); /n re Ocean Ranger,

589 F. Supp. at 323 (same).

* Plaintiffs argue that a localized liability inquiry is not necessary

because the cause of the crash was established as pilot error. Defendants

have not admitted that pilot error was the sole cause of the plane crash,

and suggest that some fault is attributable to Indonesian air traffic

controllers.

A-18

b. The American Seaman’s Claim

Were we to apply a forum non conveniens analyis to the claim

on behalf of the deceased American seaman, we might well

conclude that his claim should also be dismissed. There are, after

all, the same alternative fora available for resolution of his claim.

The remedies are not as attractive as the remedy under the Jones

Act, but notwithstanding this disadvantage, there still is a remedy.

See Piper, 454 U.S. at 249 and 254. And, if we were to consider

the private and public interest factors, we might conclude that

they favor dismissal of the American seaman’s case. The fact that

this claim has been filed in an American court on behalf of an

American is a factor which points toward retention of the Ameri-

can seaman’s case. See Piper, 454 U.S. at 255-56 (“When the

home forum has been chosen, it is reasonable to assume that this

choice is convenient”). But this factor is not decisive. /d., n.23.

What is decisive, however, and what distinguishes the American

seaman’s claim from the claims of the foreign seamen, is the

concession of the parties and the conclusion of the district court

that the Jones Act applies to the claim for the deceased Ameri-

can. The Fifth, Tenth and Eleventh Circuits (in cases involving

claims by or on behalf of foreign seamen) have all held that if the

Jones Act applies to a seaman’s claim, dismissal for forum non

conveniens is precluded. See Nicol v. Gulf Fleet Supply Vessels,

Inc., 743 F.2d 289, 293 (Sth Cir. 1984) (“this Court has held that

if American law [i.e., the Jones Act] applies, a federal court

should retain jurisdiction.” (citation omitted) ); Needham v. Phil-

lips Petroleum Co. of Norway, 719 F.2d 1481, 1483 (10th Cir.

1983) (“if American law [i.e., the Jones Act] is applicable to the

case, the forum non conveniens doctrine is inapplicable.” (cita-

tion omitted) ); Szumlicz v. Norwegian American Lines, Inc., 698

F.2d 1192, 1195 (11th Cir. 1983) (“if United States law [i.e., the

Jones Act] applies, the case should not be dismissed for forum

non conveniens.”’).

Only the Second Circuit has taken a different view. See Cruz v.

Maritime Co. of Philippines, 702 F.2d 47, 48 (2nd Cir. 1983)

(per curiam). Until this decision, “[i]t had been axiomatic...

that if the Jones Act applied under Rhoditis, an American court

could not decline to hear the case.” Edelman, Forum non Con-

veniens; Its Application in Admiralty Law, \5 J. of Maritime Law

A-19

veniens; Its Application in Admiralty Law, 15 J. of Maritime Law

and Commerce 517, 529. Although Cruz has recently been cited

by the Second Circuit as standing for the proposition that “the

forum non conveniens doctrine is applicable in Jones Act cases,”

Transunion Corp. v. PepsiCo, Inc., 811 F.2d 127, 130 (2nd Cir.

1987) (a fraud and civil RICO action), it has been suggested that

statements to this effect in Cruz are dicta because in Cruz

American law did not apply to the injured seaman’s claim. See

Edelman, 15 J. of Maritime Law and Commerce 517, 530

(1984), reporting comments by Professor Y. N. Yiannopoulos,

W. R. Irby Professor of Law at Tulane Law School. This

suggestion appears to have merit. The injured seaman in Cruz was

Filipino. He was injured while aboard a vessel which was passing

through American waters. At the time of the injury, the vessel

was moored in the Port of Camden, New Jersey. The owners and

crew were all Philippine citizens, except one officer who was a

U.S. citizen permanently residing in the Philippines. The vessel

flew the Philippine flag. The defendant's principal base of opera-

tions was the Philippines. Considering all of these factors, the

district court concluded that the Jones Act did not apply, and

dismissed the case for forum non conveniens. Cruz v. Maritime

Co. of Philippines, 549 F. Supp. 285 (S.D.N.Y. 1982), aff'd 702

F.2d 47 (2nd Cir. 1983). The Second Circuit did not address the

question whether the Jones Act applied. Instead, in affirming the

district court’s dismissal, it stated that a choice of law analysis is

not appropriate in a Jones Act case. 702 F.2d at 48. However, if

the Jones Act did not apply to the case, as the facts suggested and

the district court concluded, then this comment does indeed

appear to be dictum.

In any event, however, we find the decisions of the Fifth, Tenth

and Eleventh Circuits which preclude dismissal of a Jones Act

case for forum non conveniens to be persuasive. This view is

buttressed by decisions of the Supreme Court in which the Court

has commented upon the unavailability of forum non conveniens

as a basis for dismissal of cases filed under the Federal Employ-

ers’ Liability Act (FELA). In Gilbert, the Court stated: “It is

true that in cases under the Federal Employers’ Liability Act we

have held that plaintiff's choice of a forum cannot be defeated on

the basis of forum non conveniens.” 330 U.S. at 505. The Court

A-20

in Gilbert cited Baltimore & Ohio R. Co. v. Kepner, 314 U.S. 44

(1941) for this proposition. In Kepner, the Court stated that the

“privilege of venue, granted by the legislative body which created

this night of action [under the FELA], cannot be frustrated for

reasons of convenience or expense.” 314 U.S. at 54. The Jones

Act incorporates the FELA, 46 U.S.C. § 688(a),’ and both the

Jones Act and the FELA have specific venue provisions. The

FELA provides in relevant part:

Under this chapter an action may be brought in a district

court of the United States, in the district court of the

residence of the defendant, or in which the cause of action

arose, or in which the defendant shall be doing business at

the time of commencing the action.

45 U.S.C. § 56.

The portion of the Jones Act which pertains to jurisdiction and

venue provides:

Jurisdiction in [actions under the Jones Act] shall be under

the court of the district in which the defendant employer

resides or in which his principal office is located.

46 U.S.C. § 688 (a).

In view of the Supreme Court’s comments as to the unavaila-

bility of the forum non conveniens doctrine in FELA cases, the

degree of similarity between the specific venue provisions under

the Jones Act and under the FELA, and the incorporation of the

FELA into the Jones Act, we believe that the forum non

conveniens doctrine should be unavailable as a ground for dismis-

sal under the Jones Act as it is under the FELA. (Cf La

Seguridad v. Transytur Line, 707 F.2d 1304, 1310, n.10 (11th Cir.

1983) (suggesting that Congress implicitly spoke to, and rejected,

* Section 688(a) of the Jones Act provides in relevant part: “Any

seaman who shall suffer personal injury in the course of his employment

may, at his election, maintain an action for damages at law, with the

right of trial by jury, and in such action all statutes of the United States

modifying or extending the common-law nght or remedy in cases of

personal injurv to railway employees shall apply.” 46 U.S.C. § 688(a).

A-2]

the forum non conveniens doctrine in both FELA and Jones Act

cases); and see Dalla v. Atlas Maritime Co., 562 F. Supp. 752,

757 (C.D. Cal. 1983) (“[W]hen a seaman has a cause of action

based on American law, he comes by right into American

courts.”), affd 771 F.2d 1277 (9th Cir. 1985). Finally, we see no

reason to depart from the clear weight of authority in those

circuits which have considered this question. We hold that when

the Jones Act applies to a seaman’s claim, that claim may not be

dismissed on the ground of forum non conveniens.

C. The Injunction

When the district court dismissed the plaintiffs’ lawsuits for

forum non conveniens, the plaintiffs who did not settle their

claims reactivated lawsuits they had previously filed in the Texas

state court. In response to this, the district court enjoined the

plaintiffs and their attorneys from “filing and/or prosecuting

actions in the state courts of Texas or any other court in the

United States ... arising out of the air crash on April 28, 1981.

.... We review the grant of this injunction for abuse of discre-

tion. Golden v. Pacific Maritime Ass'n, 786 F.2d 1425, 1426 (9th

Cir. 1986).

The Anti-Injunction Act provides that:

A court of the United States may not grant an injunction to

stay proceedings in a state court except [1] as expressly

authorized by act of Congress or [2] where necessary in aid

of its jurisdiction or [3] to protect or effectuate its judgment.

28 U.S.C. § 2283.

This court strictly construes these three exceptions to the Ant:-

Injunction Act. Alton Box Board Co. v. Espirit de Corp., 682 F.2d

1267, 1271 (9th Cir. 1982).

The first exception to the Anti-Injunction Act does not apply

here, because there is no express statutory authorization for an

injunction in this situation. The second exception applies io the

American seaman’s lawsuit, because, under our holding in this

case, the district court will retain jurisdiction over that lawsuit.

See Alton Box, 682 F.2d at 1271. This exception does not apply,

however, to the foreign seamen’s lawsuits because the district

A-22

court no longer has jurisdiction over those suits. /d. The district

court held that jurisdiction was more properly in a foreign forum

and dismissed the foreign seaman’s cases. At that point there was

no need for an injunction to protect the district court’s jurisdic-

tion. /d.

The third exception to the Anti-Injunction Act similarly does

not support the district court’s injunction. This court has held that

a district court may grant an injunction to protect the res judicata

effect of its judgment “where a federal litigant has prevailed on

the merits, yet is threatened with burdensome and repetitious

relitigation of the same issues in a multiplicity of actions.”

Golden, 786 F.2d at 1427. Defendants argue that a determination

on the merits is not required for an injunction against state court

actions when a district court has dismissed a lawsuit for forum

non conveniens arising in the same matters. The wording of our

cases, however, is explicit, and refers to decisions on the merits.

See Golden, 786 F.2d at 1427; Midkiff v. Tom, 725 F.2d 502, 504

(9th Cir. 1984). Here, defendants have prevailed on a procedural

point pertaining to the propriety of the prosecution of the foreign

seamen’s lawsuit in a United States district court. No judgment

on the merits has been rendered. The grant of the injunction

against the foreign seamen prosecuting their lawsuits in state

court violated the Anti-Injunction Act and was an abuse of

discretion.

CONCLUSION

The district court did not abuse its discretion in reconsidering

the earlier denial of the defendants’ forum non conveniens mo-

tions. The district court correctly determined that foreign law

applies to the claims of the foreign seamen, and it did not abuse

its discretion is dismissing the foreign seamen’s lawsuits for forum

non conveniens. The district court did abuse its discretion in

dismissing the lawsuit on behalf of the deceased American

seaman, because the Jones Act applies to this claim. Nickol, 743

F.2d 289; Needham, 719 F.2d 1481; Szumlicz, 698 F.2d 1192.

The injunction enjoining the foreign seamen from prosecuting

their claims in state court is precluded by the Anti-Injunction

ee

A-23

Act. Accordingly, that portion of the injunction is vacated. Since

the district court will be retaining the lawsuit filed on behalf of the

deceased American seaman, however, that portion of the injunc-

tion enjoining the prosecution of the lawsuit on his behalf in any

other court in the United States is appropriate but is modified to

except prosecution in the United States District Court for the

Northern District of California. The portion of the judgment

granting the permanent injunction as to the claim for the de-

ceased American seaman is affirmed as modified.

AFFIRMED IN PART, REVERSED IN PART, VACATED

IN PART, MODIFIED AND REMANDED.

APPENDIX B

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

Nos. 86-1815, 86-1832, 86-1834, 86-1835, 86-1836

D.C. Nos.

CV-83-0603-WWS, CV-83-0604-WWS, CV-83-0605-WWS,

CV-83-0606-WWS, CV-83-0607-WWS

ORDER AMENDING OPINION

SHEREEN RAMONA ZIPFEL,

Individually and as Administratrix of lan Charles Zipfel,

deceased,

Plaintiff-Appellant,

7

HALLIBURTON COMPANY; ATLANTIC RICHFIELD COMPANY;

CROWLEY MARITIME CORPORATION; BRINKERHOFF MARITIME

DRILLING, INC.; CONTINENTAL OIL COMPANY (CONOCO,

INc.); HUDSON Bay O1L & Gas Company, LTD.; HUDBAY

Oit, Ltp. (INDONESIA); BRINKERHOFF MARITIME DRILLING,

Ptp, Ltp.; HupBAY OIL (MALACCA), LTpD.; DOME PETROLEUM

Ltp.; Dome PETROLEUM CORPORATION; ARCO OIL and GAs

CORPORATION; PT AIRFAST SERVICES INDONESIA; and Ex-

QUISITOR HELICOPTER CORPORATION,

Defendants-Appellees.

TEN FONG CRAIG, Individually and as Administratrix of the

Estate of William Henry Craig, deceased,

Plaintiff-Appellant,

v.

ATLANTIC RICHFIELD COMPANY; CROWLEY MARITIME Cor-

PORATION; BRINKERHOFF MARITIME DRILLING, INC.; CONTI-

NENTAL O1L COMPANY (CONOCO, INC.); HUDSON Bay OIL &

Gas COMPANY, LTD.; HUDBAY OIL, LTD. (INDONESIA); BRIN-

KERHOFF MARITIME DRILLING, S.A.; BRINKERHOFF MARITIME

DRILLING, PTE, Ltp.; HUpBAY OIL (MALACCA), LTD.; DOME

B-2

PETROLEUM LtTp.; DOME PETROLEUM CORPORATION: PT

AIRFAST SERVICES INDONESIA; and ExQuUISITOR HELICOPTER

CORPORATION,

Defendants-Appellees.

CHAN LUCK CHEE,

Plaintiff-Appellant,

V.

McCLELLAND ENGINEERS, INC.; MCCLELLAND ENGINEERS,

S.A.; MCCLELLAND ENGINEERS SDN. BHD.; HALLIBURTON

COMPANY; ATLANTIC RICHFIELD COMPANY; CROWLEY MaARrI-

TIME CORPORATION; BRINKERHOFF MARITIME DRILLING, INC.;

CONTINENTAL OiL COMPANY (CONOCO, INC.); HUDSON BAY

Oi & Gas ComPANy, Ltp.; HupBaAy OlL, LTp. (INDONESIA);

BRINKERHOFF MARITIME DRILLING, S.A.; BRINKERHOFF MAR-

ITIME DRILLING, PTE, Ltp.; DOME PETROLEUM LTD.; DOME

PETROLEUM CORPORATION; ARCO OIL AND GAS CORPORA-

TION; PT AIRFAST SERVICES INDONESIA; and EXxQUISITOR

HELICOPTER CORPORATION,

Defendants-Appellees.

VYNER GERARD ALBUQUERQUE,

Plaintiff-Appellant,

Vv.

OCEANEERING INTERNATIONAL, INC.; OCEANEERING INTER-

NATIONAL, SDN, BHD.; HALLIBURTON COMPANY; ATLANTIC

RICHFIELD COMPANY; CROWLEY MARITIME CORPORATION;

BRINKERHOFF MARITIME DRILLING, INC.; CONTINENTAL OIL

COMPANY (CONOCO, INC.); HUDSON Bay OiL & Gas Com-

PANY, LTp.; HUDBAY OIL, LTD. (INDONESIA); BRINKERHOFF

MARITIME DRILLING, PTE, Ltp.; HUDBAY OIL (MALACCA),

Ltp.; DOME PETROLEUM LTD.; DOME PETROLEUM CORPORA-

TION; ARCO OIL AND GAS CORPORATION; PT AIRFAST SER-

VICES INDONESIA; and EXQUISITOR HELICOPTER

CORPORATION,

Defendants-Appellees.

B-3

PATRICK PAUL GRUNKE,

Plaintiff-Appellant,

Va

ATLANTIC RICHFIELD COMPANY; CROWLEY MARITIME Cor-

PORATION; BRINKERHOFF MARITIME DRILLING, INC.; CONTI-

NENTAL OIL COMPANY (CONOCO, INC.); HUDSON BAy OIL &

Gas COMPANY, LTD; HUDBAY OIL, LTD. (INDONESIA); BRIN-

KERHOFF MARITIME DRILLING, S.A.; BRINKERHOFF MARITIME

DRILLING, PTE, Ltp.; HUpBAY OIL (MALACCA), LTD.; DOME

PETROLEUM, LTp.; DOME PETROLEUM CORPORATION; ARCO

OIL AND GAS CORPORATION; PT AIRFAST SERVICES INDONE-

SIA; and ExQUISITOR HELICOPTER CORPORATION,

Defendants-Appellees.

Appeal from the United States District Court

for the Northern District of California

William W. Schwarzer, District Judge, Presiding

Argued and Submitted

February 9, 1987—San Francisco, California

Filed June 23, 1987

Amended November 24, 1987

Before: Mary M. Schroeder, Charles Wiggins and

David R. Thompson, Circuit Judges.

Opinion by Judge Thompson

SUMMARY

Courts and Procedure/ Injunctions

Appeal from dismissal. Affirmed in part, reversed in part,

vacated in part, modified and remanded.

These related but unconsolidated actions were filed in the

district court by or on behalf of American and foreign seamen

who were killed or injured in an air crash in Indonesia. Motions to

dismiss the actions on the ground of forum non conveniens were

filed and denied. Upon reconsideration, another judge of the same

B-4

court granted the motions and dismissed all of the cases, subject

to conditions. The district court then restrained, and later perma-

nently enjoined, the plaintiffs and their attorneys from prosecuting

any action arising out of the air crash in any court in the United

States. The final judgment dismissed all of the appellants’ actions,

unconditionally, on the ground of forum non conveniens. This

court affirms the district court’s dismissal of the foreign seamens’

claims and reverses the dismissal of the claim filed on behalf of

the American seaman. This court vacates that part of the perma-

nent injunction enjoining the foreign seamen from prosecuting

their claims in state court. This court modifies and affirms the

grant of the permanent injunction as it pertains to the claim filed

on behalf of the American seaman.

Appellants’ claims arise out of an airplane crash in Indonesia.

At the time of the crash, the airplane was transporting crew

members of the oil drilling vessel, Brinkeroff I, from Singapore to

Indonesia, where the crew members were to be flown by helicop-

ter to the vessel.

Judge Schwarzer chose to reconsider Judge Aguilar’s denial of

the appellees’ forum non conveniens motions because, in his view,

Judge Aguilar had failed to consider relevant Supreme Court

precedent. Judge Schwarzer did not abuse his discretion by

. deciding to reconsider Judge Aguilar’s prior ruling. This court

reviews under the clearly erroneous standard the district court’s

findings of fact underlying its choice of law determination. This

court treats all of the injured and deceased crew members as

seamen. The findings of the district court support its conclusion

that the drilling vessel qualification applies to the Brinkerhoff I.

In determining whether the Jones Act applies to the claims of the

foreign seamen, the district court focused on the factors which

received greater weight in the drilling mg context. These factors

point toward the application of foreign law to these claims. This

court agrees with the district court’s conclusion that foreign law,

not American law, applies to the claims of the foreign seamen. It

is conceded that American law applies to the claim on behalf of

the deceased American seaman. The appellees have established

that Singapore and Indonesia are satisfactory alternative fora.

This court concludes that a satisfactory alternative forum exists

B-5

for the resolution of these claims of the foreign seamen. This

court agrees with the district court’s conclusion that the balance

of the private interest factors tips in favor of dismissing, for forum

non conveniens, the foreign seamen’s lawsuits. The public interest

factors weigh in favor of dismissal of the claims. The district court

did not abuse its discretion in dismissing the foreign seamen’s

lawsuits for forum non conveniens, subject to the conditions

which the district court imposed. The fact that the American

seaman’s claim has been filed in an American court on behalf of

an American is a factor which points toward retention of the

American seaman’s case. What distinguishes the American sea-

man’s claim from the claims of the foreign seamen, is the

concession of the parties and the conclusion of the district court

that the Jones Act applies to the claim for the deceased Ameri-

can. This court finds the decisions of other circuits which pre-

cludes dismissal of a Jones Act case for forum non conveniens to

be persuasive. In view of the Supreme Court’s comments as to the

unavailability of the forum non conveniens doctrine in Federal

Employers’ Liability Act (FELA) cases, the degree of similarity

between the specific venue provisions under the Jones Act and

under the FELA, and the incorporation of the FELA into the

Jones Act, this court believes that the forum non conveniens

doctrine should be unavailable as a ground for dismissal under the

Jones Act as it is under the FELA. This court holds that when the

Jones Act applies to a seaman’s claim, that claim may not be

dismissed on the ground of forum non conveniens. When the

district court dismissed the appellants’ lawsuits for forum non

conveniens, the appellants who did not settle their claims reacti-

vated lawsuits they had previously filed in state court. In response

to this, the district court enjoined the appellants and their attor-

neys from filing actions in any court in the United States arising

out of the air crash. The first exception to the Anti-Injunction Act

does not apply here, because there is no express statutory authori-

zation for an injunction in this situation. The second exception

applies to the American seaman’s lawsuit, because, under this

court’s holding in this case, the district court will retain jurisdic-

tion over that lawsuit. This exception does noi apply to the foreign

seamen’s lawsuits because the district court no longer had Jjuris-

diction over those suits. The third exception similarly does not

B-6

support the district court’s injunction. The grant of the injunction

against the foreign seamen prosecuting their lawsuits. in state

court violated the Anti-Injunction Act and was an abuse of

discretion.

COUNSEL

Benton Musselwhite, Houston, Texas, for the plaintiffs-

appellants.

Earnest N. Reddick, San Francisco, California, for the defend-

ants-appellees Crowley Maritime Corp., Brinkerhoff Maritime

Drilling Corp., Brinkerhoff Maritime Drilling Corp., S.A., and

Brinkerhoff Maritime Drilling Corp. PTE, LTD; Graydon S.

Staring, San Francisco, California, for the defendant-appellee

Halliburton Co; Steven M. Perl, San Francisco, California, for

the defendant-appellee McClelland Engineers, Inc.

Elliot L. Bien, San Francisco, California, for the defendant-

appellee Oceaneering International, Inc.; James M. Derr, Los

Angeles, California, for the defendants-appellees Atlantic Rich-

field Co. and Arco Oil & Gas Corp.; Robert J. Finan, San

Francisco, California, for the defendant-appellee Conoco, Inc.

ORDER

The opinion filed June 23, 1987 is amended as follows:

I

The third sentence of the first grammatical paragraph on page

11 of the slip opinion is deleted. This deleted sentence reads:

“BMD employed Grunke and decedent Craig; Halliburton Ltd.

and Halliburton Inc. employed decedent Zipfel; McClelland S.A.

and McClelland Engineering Inc. employed Chee; and P. T.

Calmarine and Oceaneering employed Albuquerque.”

The deleted sentence is replaced with the following sentence:

“BMD employed Grunke and decedent Craig; the district court

found that Zipfel was employed by Halliburton Ltd., Chee by

McClelland Engineers S.A., and Albuquerque by Oceaneering

B-7

International, S.D.N. B.H.D., each a foreign subsidiary of de-

fendants/appellees Halliburton Company.”

A new reference to footnote 9 is added at the end of the

paragraph which begins on page 22 of the slip opinion with the

words ““Were we to apply a forum non conveniens analysis to the

claim on behalf of...” , and which ends on page 23 with the

words “... should not be dismissed for forum non conveniens.’.”

New footnote 9 provides:

The Fifth Circuit has recently signaled its departure from

this position. Jn re Air Crash Disaster Near New Orleans,

La., 821 F.2d 1147, 1163 n.25 (Sth Cir. 1987). In footnote

25 of Air Crash, a divided en banc panel of the Fifth Circuit,

with Judges Garza, Johnson, Garwood, and Higginbotham

not joining in the footnote, stated that in view of the

Supreme Court’s opinion in Piper Aircraft Co. v. Reyno, 454

U.S. 235 (1981), and the district court’s analysis in the

present case, Sherrill v. Brinkerhoff Maritime Drilling, 615

F. Supp. 1021, 1034-35 (N.D. Cal. 1985), it disapproved and

overruled all of its Jones Act case law in which it had

previously held that if the Jones Act applied to a case, then

the case should not be dismissed for forum non conveniens.

Air Crash, 821 F.2d at 1163 n.25. Air Crash was not a Jones

Act case.

IIl

The footnote reference in the text on page 24 of the slip opinion

is changed from 9 to 10, as is the numbering of the footnote at the

bottom of that page.

IV

The following is inserted in the opinion just above “CONCLU-

SION” after the paragraph on page 27 of the slip opinion which

ends with the words “... an abuse of discretion.”

The recent Fifth Circuit case of Exxon Corporation v.

Chick Kam Choo, 817 F.2d 307 (Sth Cir. 1987) is inappo-

site. In Exxon, the surviving wife of a seaman who had been

B-8

injured and died on board ship in Singapore, brought suit in

the federal district court in Houston, Texas. The district

court granted the defendants’ motion for summary judgment

“as to Plaintiffs’ claims under the Jones Act, the Death on

the High Seas Act, the Longshoremen’s and Harbor Work-

ers Compensation Act, and the general maritime laws of the

United States.” Exxon, 817 F.2d at 310 n.4 (emphasis in

original). Having thus disposed of these claims on the

merits, the court nonetheless granted the defendants’ motion

to dismiss “under the doctrine of forum non conveniens, . . .

without prejudice,” and subject to conditions which permit-

ted the plaintiff to refile her suit in Singapore. /d.

The judgment permanently enjoined the plaintiff from

prosecuting any action against the defendants in the courts of

Texas or any other state, arising out of or related to the death

of the plaintiffs husband on board ship in Singapore. The

plaintiff did not appeal this judgment and it became final.

She then attempted to pursue, against the defendants in the

state court in Houston, Texas, the same claims she had filed

against them in the federal district court in Houston. The

defendants filed a new suit in federal court in Houston to

enjoin the state proceeding. The district court granted a

permanent injunction enjoining the state proceeding and

sanctioned the plaintiff's attorneys for pursuing it.

The Fifth Circuit, with one member of the three-judge

panel concurring and one dissenting, affirmed the judgment

of the district court. What established the opinion as a

majority opinion was the concurrence of Judge Clark. He

pointed out that the plaintiff was simply bound by the earlier

judgment which enjoined her from relitigating the case in

state court; he did not concur in Judge Gee's forum non

conveniens analysis. Exxon, therefore, is not a majority

opinion on forum non conveniens and hence is not in conflict

with our unanimous opinion in this case.

B-9

OPINION

THOMPSON, Circuit Judge:

These related but unconsolidated actions were filed in the

United States District Court for the Northern District of Califor-

nia by or on behalf of American and foreign seamen who were

killed or injured in an air crash in Indonesia. The actions were

filed under the Jones Act, 46 U.S.C. § 688, the Shipowners

Liability (Sick and Injured Seamen) Convention of 1936, 54

Stat. 1693, general maritime law, and state law. Motions to

dismiss the actions on the ground of forum non conveniens were

filed and denied. Upon reconsideration, another judge of the same

court granted the motions and dismissed all of the cases, subject

to conditions. Sherrill v. Brinkerhoff Maritime Drilling, 615 F.

Supp. 1021 (N.D. Cal. 1985). The dismissal order was filed

August 12, 1985. It provided in part that the order would become

final “‘as to any plaintiff upon that plaintiff's failure to have filed a

new action [in Indonesia or Singapore] upon the expiration of

ninety days from the date of filing this order.” No plaintiff filed

such an action. Instead, a parallel Texas state court action which

some of the plaintiffs had previously filed was reactivated. The

district court then restrained, and later permanently enjoined, the

plaintiffs and their attorneys from prosecuting any action arising

out of the air crash in any court in the United States. This

permanent injunction was included in a final judgment which the

district court entered January 31, 1986. The final judgment

dismissed all of the plaintiffs’ actions, unconditionally, on the

ground of forum non conveniens. A number of the cases originally

filed were settled. Five cases remain, and are involved in this

appeal.

We have jurisdiction under 28 U.S.C. § 1291. We affirm the

district court’s dismissal of the foreign seamen’s claims. We

reverse the dismissal of the claim filed on behalf of the deceased

American seaman. We vacate that part of the permanent injunc-

tion enjoining the foreign seamen from prosecuting their claims in

state court. We modify and affirm the grant of the permanent

injunction as it pertains to the claim filed on behalf of the

American seaman.

B-10

FACTS AND PROCEEDINGS

The plaintiffs’ claims arise out of a 1981 airplane crash at

Simpang Tiga Airport in Indonesia. The airplane was operated by

P.T. Airfast Services, an Indonesian corporation, and chartered

by Hudbay Oil, an Indonesian subsidiary of a Canadian corpora-

tion. At the time of the crash, the airplane was transporting crew

members of the oil drilling vessel, Brinkeroff I, from Singapore to

Indonesia, where the crew members were to be flown by helicop-

ter to the vessel. The Brinkerhoff I is an American flag vessel. For

approximately nineteen months pnor to the crash, this vessel had

operated in Far Eastern waters near Indonesia and Singapore. As

the district court observed:

It is not disputed that the operative facts on which liability

and damages are premised occurred in Indonesia, and to a

lesser extent, in Singapore. These include the maintenance

and operation of the aircraft by Airfast, the chartering of the

aircraft by Hudbay, and the actions of the crew and the

Indonesian air traffic controllers. Eye witnesses and other

knowledgeable persons are located there. Records and physi-

cal evidence relating to the operation and crash of the

aircraft, the activities of the defendants, the injuries suffered

by plaintiffs, and the post-accident investigation are also

located there. It may be, as plaintiffs contend, that other

evidence is scattered around the world, but none of it is

shown to be located in this district. That the bulk of it is

located in Singapore or Indonesia is demonstrated by plain-

tiffs’ consolidated deposition notice...

Sherrill, 615 F. Supp. at 1031-32.

The Brinkerhoff I is owned by Brinkerhoff Maritime Drilling

Corporation (“BMD”), a Delaware corporation with home offices

in San Francisco. BMD’s base of corporate operations was San

Francisco, California, and the Brinkerhoff I’s base of operations

was either Singapore or Indonesia, or both.' The crew members

‘The specific location of the Brinkerhoff I’s operations was deter-

mined by Atlantic Richfield Indonesia, Inc. (“ARII”), pursuant to a

Day-Work Drilling Contract between BMD and ARII. Although plain-

B-11

whose claims are involved in this appeal were employees, respec-

tively, of some of the defendants. BMD employed Grunke and

decedent Craig; the district court found that Zipfel was employed

by Halliburton Ltd., Chee by McClelland Engineers S.A., and

Albuquerque by Oceaneering International, S.D.N. B.H.D., each

a foreign subsidiary of defendants/appellees Halliburton Com-

pany. Decedent Craig was an American and his wife, plaintiff Ten

Fong Craig, is Singaporean; decedent Zipfel was British and his

wife, plaintiff Shereen Ramona Zipfel, is Singaporean; plaintiffs

Chee and Albuquerque are Singaporean; and plaintiff Grunke is

Australian.

The cases were originally assigned to District Judge Aguilar.

The defendants moved to dismiss all of the actions on the ground

of forum non conveniens. Judge Aguilar concluded that American

law applied to all of the cases and denied the motions. The cases

were subsequently reassigned to District Judge Schwarzer. The

defendants renewed their forum non conveniens motions. Judge

Schwarzer concluded that American law, and consequently the

Jones Act, applied only to the claim of the American crew

member, and foreign law applied to the claims of the foreign crew

members. He then dismissed all of the cases on the ground of

forum non conveniens, subject to conditions.” The permanent

injunction and final judgment of dismissal followed.

tiffs make much of American choice of law and forum clauses in this

contract, it is not relevant to this action that BMD and ARII agreed to

resolve conflicts between themselves in America. See Bailey v. Dolphin

International, Inc., 697 F.2d 1268, 1276, n.24 (Sth Cir. 1983).

> The conditions of dismissal are that the defendants (1) submit to

the foreign court’s jurisdiction, (2) waive any statute of limitations

defenses, (3) make witnesses available, (4) not object to use of

discovery materials and (5) agree to satisfy any judgment entered

against them.

B-12

DISCUSSION

A. The District Court’s Reconsideration of Previous Denial of

Motion

We review for abuse of discretion a district judge’s decision to

reconsider an interlocutory order by another judge of the same

court. Castner v. First National Bank, 278 F.2d 376, 380 (9th Cir.

1960). In Castner we stated that the second judge does not

conscientiously carry out his judicial funtion “if he permits what

he believes to be a prior erroneous ruling to control the case.” 278

F.2d at 380.

Judge Schwarzer chose to reconsider Judge Aguilar’s denial of

the defendants’ forum non conveniens motions because, in his

view, Judge Aguilar had failed to consider relevant Supreme

Court precedent, including the Supreme Court’s decision in Piper

Aircraft Co. v. Reyno, 454 U.S. 235 (1981), and has failed to

follow relevant Ninth Circuit precedent, including our decision in

Phillips v. Amoco Trinidad Oil Co., 632 F.2d 82 (9th Cir. 1980),

cert. denied sub nom., Romilly v. Amoco Trinidad Oil Co., 451

U.S. 920 (1981). As we stated in Castner, “we are not concerned

at this stage with whether the second judge is in fact correct, but

whether he was justified in reviewing the prior judge’s ruling at

all. [The second judge’s] substantive ruling may be, as a matter

of law, erroneous, yet his right and power to [reconsider the prior

judge’s interlocutory ruling] is perfectly justified as a matter of

discretion.” Castner, 278 F.2d at 380-81. Judge Schwarzer did not

abuse this discretion by deciding to reconsider Judge Aguilar’s

prior ruling. .

B. The District Court’s Forum Non Conveniens Dismissal

Order

1. Standard of Review

We review for abuse of discretion a district court’s dismissal of

a case on the ground of forum non conveniens. Piper, 454 U.S. at

237; Pereira v. Utah Transport, Inc., 764 F.2d 686, 690 (9th Cir.

1985), cert. dismissed, 106 S. Ct. 1253 (1986).

The forum non conveniens determination is committed to

the sound discretion of the trial court. It may be reversed

B-13

only when there has been a clear abuse of discretion; where

the court has considered all relevant public and private

interest factors, and where its balancing of these factors is

reasonable, its decision deserves substantiat deference.

Piper, 454 U.S. at 257 (citations omitted).

Before dismissing a case for forum non conveniens, a district

court must first make a choice of law determination.’ Pereira, 764

F.2d at 688. We review the district court’s choice of law determi-

nation de novo. /d.; Phillips, 632 F.2d at 84. We review under the

clearly erroneous standard the district court’s findings of fact

underlying its choice of law determination. Villar v. Crowley

Maritime Corp., 782 F.2d 1478, 1479-80 (9th Cir. 1986).

2. Choice of Law

a. The “Seaman Status” Requirement

For the Jones Act to apply, “seaman” status must be estab-

lished. Estate of Wenzel v. Seaward Marine Services, Inc., 709

F.2d 1326, 1327 (9th Cir. 1983). The district court assumed the

injured and deceased crew members were “seamen.” This as-

sumption is not challenged on appeal. Accordingly, we treat all of

the injured and deceased crew members as “seamen.”

b. Analysis

The Supreme Court in Lauritzen v. Larsen, 345 U.S. 571, 583-

92 (1953) listed seven factors to be considered in determining

whether 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

> The Second Circuit has stated 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 (2nd Cir. 1983) (per curiam). The Second

Circuit stands alone in this view. See Nicol v. Gulf Fleet Supply Vessels,

Inc., 743 F.2d 289, 292-93 (Sth Cir. 1984); Needham v. Phillips

Petroleum Co. of Norway, 719 F.2d 1481, 1483 (10th Cir. 1983);

Szumlicz v. Norwegian American 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).

B-14

and choice of law of the contract: (6) accessibility of a foreign

forum; and (7) law of the forum. In Hellenic Lines, Lid. v.

Rhoditis, 398 U.S. 306, 308-309 (1970), the Court added an

eighth factor: the shipowner’s base of operations.* In Rhoditis, the

Court emphasized that the factors should not be applied in a

mechanical fashion, and that the list is not exhaustive. /d.

(i) The “Drilling Vessel” Qualification

In cases involving typical “blue-water” vessels “plying interna-

tional waters,” the law of the flag is of “cardinal importance.”

Lauritzen, 345 U.S. at 584. “[T]he law of the flag [is applied] on

the pragmatic basis that there must be some law on shipboard,

that it cannot change at every change of waters, and no experi-

ence shows a better rule than that of the state that owns her.” /d.

at 585. For this reason, “the weight given to the ensign overbears

most other connecting events in determining applicable law”

aboard traditional vessels. /d.

In cases involving atypical vessels such as semi-submersible or

floating oil drilling vessels, however, courts do not give the law of

the flag controlling weight; rather, other factors are emphasized.

Koke v. Phillips Petroleum Co., 730 F.2d 211, 219 (Sth Cir.

1984); Phillips, 632 F.2d at 86-87. The place of the injury, the

domicile of the injured person and the location where the employ-

ment contract was entered into take on greater significance. Koke,

730 F.2d at 219; Phillips, 632 F.2d at 86-87. The base of the

vessel’s day-to-day operations is considered to be more important

than the location of the corporate headquarters. Phillips, 632 F.2d

at 88.

Plaintiffs argue that the drilling vessel qualification should not

apply to the Brinkerhoff I because it was not a stationary drilling

rig.’ Although Phillips involved a drilling rig which remained in

* The analysis for determining whether the Jones Act applies to these

claims is also controlling on the issue whether to apply American

maritime law. Romero v. International Terminal Operating Co., 358

U.S. 354 (1959).

* Between 1979 and February 1983, the Brinkerhoff | operated at the

following locations:

B-15

one location for several years, the drilling rig analysis has been

applied to vessels which do not remain in a single fixed location.

In Koke, 730 F.2d at 219, the Fifth Circuit applied the drilling rig

analysis to a non-stationary drilling vessel which could move

under its own power. The Koke court described the vessel in these

words:

While the Sedco/Phillips SS certainly has greater mobility

than a fixed rig which may remain in place for several years,

it was not, and was not designed to function as, a vessel

“plying the seas” in the traditional sense. It is a semi-

submersible platform that rests on columns attached to

flotation chambers. Its movements occur within a specific

and limited geographical area. Further, when travel over long

distances is required, it is apparently towed to a location....

Id.

The district court found that the Brinkerhoff I was unable to

move under its own power, had to be towed by other vessels when

moved, and had remained for long periods of time prior to the

-accident at only a few drilling locations in the general vicinity of

Indonesia. Sherrill, 615 F. Supp. at 1027-28. These findings

support the district court’s conclusion that the drilling vessel

qualification applies to the Brinkerhoff I. Koke, 730 F.2d at 219.

(ii) Applying the Choice of Law Factors

The applicability of the Jones Act to the claim for the death of

the American seaman was not disputed. Accordingly, the district

June 1979-Sept. 1979 South China Sea

Sept. 1979-Nov. 1979 Singapore Harbor

Nov. 1979-April 1981 Java Sea

April 1981-June 1981 Malacca Straits

June 1981 To Singapore Harbor for ten days

of repairs

June 1981-Feb. 1983 Java Sea

The airplane crash out of which these cases arose occurred April 28,

1981.

RE

B-16

court determined that the Jones Act applied to his claim. This

determination is not challenged on appeal.°

In determining whether the Jones Act applies to the claims of

the foreign seamen, the district court focused on the factors which

receive greater weight in the drilling mg context. These factors

point toward the application of foreign law to these claims. The

place of the alleged wrongful act was Indonesia, the base of

operations was Indonesia or, to a lesser extent, Singapore, and the

employment contracts or other hiring arrangements were made in

foreign locations. Moreover, the allegiance of the injured foreign

seamen is foreign and a foreign forum is accessible to them.

While other factors point toward application of American law

(the law of the flag, the allegiance of the defendant shipowner,

the corporate headquarters of the defendant shipowner, and the

law of the forum), these factors are of lesser importance in a

choice of law analysis where the vessel is a drilling rig as opposed

to a typical blue-water vessel plying international waters. Koke,

730 F.2d at 219-20; Phillips, 632 F.2d at 86-88. The district court

concluded that foreign law, not American law, applies to the

claims of the foreign seamen. We agree.

3. Forum Non Conveniens Analysis

Having determined that foreign law applies to the claims of the

foreign seamen, and it having been conceded that American law

applies to the claim on behalf of the deceased American seaman,

we now consider whether the district court erred in dismissing all

of the claims for forum non conveniens. We consider separately

the claims of the foreign seamen and the claim on behalf of the

deceased American seaman.

a. The Foreign Seamen

i. Availability of an Alternative Forum

At the outset of any forum non conveniens inquiry, the

court must determine whether there exists an alternative

° That all the claims in this case arise out of one occurrence does not

require the application of uniform law to the claims of plaintiffs of

differing nationalities. Jn re Ocean Ranger Sinking Off Newfoundland on

February 15, 1982, 589 F. Supp. 302, 320 and n.21 (E.D. La. 1984).

B-17

forum. Ordinarily, this requirement will be satisfied when the

defendant is “amenable to process” in the other jurisdiction.

[Gulf Oil Corp. v.| Gilbert, 330 U.S. [501,] 506-507

[(1947)]. In rare circumstances, however, where the rem-

edy offered by the other forum is clearly unsatisfactory, the

other forum may not be an adequate alternative, and the

initial requirement may not be satisfied. Thus, for example,

dismissal would not be appropriate where the alternative

forum does not permit litigation of the subject matter of the

dispute. (citation omitted).

Piper, 454 U.S. at 254, n.22.

The defendants bear the burden of proving the existence of an

adequate aiternative forum. Cheng v. Boeing Co., 708 F.2d 1406,

1411 (9th Cir.), cert. denied sub nom. Lui Su Nai-Chao v. Boeing

Co., 464 U.S. 1017 (1983). They carried this burden. As to

Singapore, the defendants submitted affidavits and declarations

which showed that the courts of Singapore have jurisdiction over

parties submitting to their jurisdiction, which submission may be

by consent; that the defendants may waive the statute of limita-

tions; that discovery of documents and interrogatories are avail-

able, but depositions are allowed only in certain circumstances;

that witnesses may be subpoenaed within Singapore; that Singa-

pore permits third party indemnity claims; that Singapore has

adopted English common law with respect to claims for personal

injury and English law generally with respect to air transport

cases, and has a wrongful death statute.

As to Indonesia, the defendants’ affidavits and declarations

established that Indonesian and foreign parties may submit to the

jurisdiction of Indonesian courts by written consent; that under

the Indonesian Civil Code, defendants may waive the statute of

limitations; that the court can compel the attendance of witnesses;

and that third party indemnity claims are permitted. These

affidavits and declarations further showed that Indonesian courts

would apply Indonesian law, and remedies would be available to

the injured seamen and their survivors under Indonesia’s Work-

men’s Compensation Law, under the Indonesian Civil Code for

Negligence, under the Indonesian Carriage by Air Act, and under

the Warsaw Convention.

B-18

The affidavits which the plaintiffs filed in the district court were

insufficient to counter significantly the affidavits and declarations

filed on behalf of the defendants. The plaintiffs, however, have

now submitted supplemental affidavits which they ask us to

consider for the first time on appeal. They contend these supple-

mental affidavits show that neither Singapore nor Indonesia is a

satisfactory alternative forum. Normally, we will not permit the

record on appeal to be supplemented with evidence not presented

to the district court. Karmun v. Commissioner, 749 F.2d 567, 570

(9th Cir. 1984), cert. denied, 106 S.Ct. 66 (1985). See Fed. R.

App. P. 10(a); Ninth Circuit Rules 4(a), 4(b) and 13(a)(1).

However, even if we were to consider the plaintiffs’ proffered

affidavits, we would still agree with the district court that the

defendants have established that Singapore and Indonesia are

satisfactory alternative fora.’ Such alternative fora may not pro-

vide all of the remedies and benefits which might be available in

an American court, but the remedies provided are not “so clearly

inadequate or unsatisfactory that [there] is no remedy at all.”

Piper, 454 U.S. at 254. The plaintiffs’ “potential damages award

may be smaller, [but] there is no danger that they will be

deprived of any remedy or treated unfairly.” Jd. at 255. Accord-

ingly, we conclude that a satisfactory alternative forum exists for

the resolution of these claims of the foreign seamen.

ii. Private and Public Interest Factors

We have determined that foreign law is applicable to the claims

of the foreign seamen, and that satisfactory alternative fora exist

for the resolution of these claims. We now consider, and balance,

the private interest and public interest factors described by the

Supreme Court in Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 508

(1947). We listed these factors in Pereira: :

The private interest factors include: (1) relative ease of

access to sources of proof; (2) availability of compulsory

process for attendance of unwilling witnesses, and cost of

obtaining attendance of willing witnesses; (3) possibility of

’The defendants request that sanctions be imposed against the

plaintiffs for attempting to submit supplemental affidavits on appeal.

The request is denied.

B-19

viewing subject premises; (4) all other factors that render

trial of the case expeditious and inexpensive. (citation

omitted).

The public interest factors include: (1) administrative

difficulties flowing from court congestion; (2) imposition of

jury duty on the people of a community that has no relation

to the litigation; (3) local interest in having localized contro-

versies decided at home; (4) the interest in having a diversity

case tried in a forum familiar with the law that governs the

action; (5) the avoidance of unnecessary problems in con-

flicts of law. (citation omitted).

Pereira at 690.

(a) The Private Interest Factors

In applying the private interest factors to the foreign seamen’s

claims, the district court noted that access to the sources of proof

clearly pointed to trial in Singapore or Indonesia. Most of the

evidence and witnesses are located at or near the crash site in

Indonesia or the airport in Singapore where the airplane was

serviced and prepared for take-off. The district court further

noted that none of the evidence or witnesses was located in

California, and that none of the material witnesses was subject to

compulsory process in the district court, whereas many were

located in Indonesia and Singapore and would be subject to

process in those courts. Although plaintiffs have agreed to stipu-

late that they will pay all the costs of bringing these witnesses to

the United States, they cannot assure that the witnesses will be

willing to make this journey. The district court also noted that it

may not be able to acquire personal jurisdiction over potential

third-party defendants such as Airfast and the government of

Indonesia. The district court concluded that the balance of the

private interest factors tips in favor of dismissing, for forum non

conveniens, the foreign seamen’s lawsuits. We agree. -

* Plaintiffs argue that a localized liability inquiry is not necessary

because the cause of the crash was established as pilot error. Defendants

have not admitted that pilot error was the sole cause of the plane crash,

and suggest that some fault is attributable to Indonesian air traffic

controllers.

ESSE ee oe

B-20

(b) The Public Interest Factors

In its consideration of the public interest factors, the district

court found that the foreign seamen’s lawsuits lacked a significant

connection with the district court forum; that California had no

interest in the actions; that the lawsuits would impose a burden on

the district court’s docket and would impede the ability of local

litigants to get their cases to trial; that it would be a burden to the

people of the community to have to sii as jurors on the cases; and

that the application of foreign law in a foreign forum would not be

inconsistent with the convenience of the foreign seamen. These

findings weigh in favor of dismissal of the claims.

We conclude that the district court did not abuse its discretion

in dismissing the foreign seamen’s lawsuits for forum non con-

veniens, subject to the conditions which the district court im-

posed. See Pereira, 764 F.2d at 690 (approving similar

conditions); Koke, 730 F.2d at 214 (same); Jn re Ocean Ranger,

589 F. Supp. at 323 (same).

b. The American Seaman’s Claim

Were we to apply a forum non conveniens analysis to the claim

on behalf of the deceased American seaman, we might well

conclude that his claim should also be dismissed. There are, after

all, the same alternative fora available for resolution of his claim.

The remedies are not as attractive as the remedy under the Jones

Act, but notwithstanding this disadvantage, there still is a remedy.

See Piper, 454 U.S. at 249 and 254. And, if we were to consider

the private and public interest factors, we might conclude that

they favor dismissal of the American seaman’s case. The fact that

this claim has been filed in an American court on behalf of an

American is a factor which points toward retention of the Ameri-

can seaman’s case. See Piper, 454 U.S. at 255-56 (“When the

home forum has been chosen, it is reasonable to assume that this

choice is convenient”). But this factor is not decisive. /d., n.23.

What is decisive, however, and what distinguishes the American

seaman’s claim from the claims of the foreign seamen, is the

concession of the parties and the conclusion of the district court

that the Jones Act applies to the claim for the deceased Ameri-

can. The Fifth, Tenth and Eleventh Circuits (in cases involving

B-21

claims by or on behalf of foreign seamen) have all held that if the

Jones Act applies to a seaman’s claim, dismissal for forum non

conveniens is precluded. See Nicol v. Gulf Fleet Supply Vessels,

Inc., 743 F.2d 289, 293 (Sth Cir. 1984) (“this Court has held that

if American law [1.e., the Jones Act] applies, a federal court

should retain jurisdiction.” (citation omitted) ); Needham v. Phil-

lips Petroleum Co. of Norway, 719 F.2d 1481, 1483 (10th Cir.

1983) (“if American law [i.e., the Jones Act] is applicable to the

case, the forum non conveniens doctrine is inapplicable.” (cita-

tion omitted) ); Szumlicz v. Norwegian American Lines, Inc., 698

F.2d 1192, 1195 (11th Cir. 1983) (“if United States law [i.e., the

Jones Act] applies, the case should not be dismissed for forum

non conveniens.”).”

Only the Second Circuit has taken a different view. See Cruz v.

Maritime Co. of Philippines, 702 F.2d 47, 48 (2nd Cir. 1983)

(per curiam). Until this decision, “[i]t had been axiomatic...

that if the Jones Act applied under Rhoditis, an American court

could not decline to hear the case.” Edelman, Forum non Con-

veniens; Its Application in Admiralty Law, 15 J. of Maritime Law

and Commerce 517, 529. Although Cruz has recently been cited

by the Second Circuit as standing for the proposition that “the

forum non conveniens doctrine is applicable in Jones Act cases,”

Transunion Corp. v. PepsiCo, Inc., 811 F.2d 127, 130 (2nd Cir.

1987) (a fraud and civil RICO action) it has been suggested that

statements to this effect in Cruz are dicta because in Cruz

American law did not apply to the injured seaman’s claim. See

* The Fifth Circuit has recently signaled its departure from this

position. Jn re Air Crash Disaster Near New Orteans, La., 821 F.2d 1147,

1163 n.25 (Sth Cir. 1987). In footnote 25 of Air Crash, a divided en

banc panel of the Fifth Circuit, with Judges Garza, Johnson, Garwood,

and Higginbotham not joining in the footnote, stated that in view of the

Supreme Court’s opinion in Piper Aircraft Co. v. Reyno, 454 U.S. 235

(1981), and the district court’s analysis in the present case, Sherrill v.

Brinkerhoff Maritime Drilling, 615 F.Supp. 1021, 1034-35 (N.D. Cal.

1985), it disapproved and overruled all of its Jones Act case law in

which it had previously held that if the Jones Act applied to a case, then

the case should not be dismissed for forum non conveniens. Air Crash,

821 F.2d at 1163 n.25. Air Crash was not a Jones Act case.

a

B-22

Edelman, 15 J. of Maritime Law and Commerce 517, 530

(1984), reporting comments by Professor Y. N. Yiannopoulos,

W. R. Irby Professor of Law at Tulane Law School. This

suggestion appears to have merit. The injured seaman in Cruz was

Filipino. He was injured while aboard a vessel which was passing

through American waters. At the time of the injury, the vessel

was moored in the Port of Camden, New Jersey. The owners and

crew were all Philippine citizens, except one officer who was a

U.S. citizen permanently residing in the Philippines. The vessel

flew the Philippine flag. The defendant’s principal base of opera-

tions was the Philippines. Considering all of these factors, the

district court concluded that the Jones Act did not apply, and

dismissed the case for forum non conveniens. Cruz v. Maritime

Co. of Philippines, 549 F. Supp. 285 (S.D.N.Y. 1982), aff'd 702

F.2d 47 (2nd Cir. 1983). Tne Second Circuit did not address the

question whether the Jones Act applied. Instead, in affirming the

district court’s dismissal, it stated that a choice of law analysis is

not appropriate in a Jones Act case. 702 F.2d at 48. However, if

the Jones Act did not apply to the case, as the facts suggested and

the district court concluded, then this comment does indeed

appear to be dictum. .

In any event, however, we find the decisions of the Fifth, Tenth

and Eleventh Circuits which preclude dismissal of a Jones Act

case for forum non conveniens to be persuasive. This view is

buttressed by decisions of the Supreme Court in which the Court

has commented upon the unavailability of forum non conveniens

as a basis for dismissal of cases filed under the Federal Employ-

ers’ Liability Act (FELA)}. In Gilbert, the Court stated: “It is

true that in cases under the Federal Employers’ Liability Act we

have held that plaintiff's choice of a forum cannot be defeated on

the basis of forum non conveniens.” 330 U.S. at 505. The Court

in Gilbert cited Baltimore & Ohio R. Co. v. Kepner, 314 U.S. 44

(1941) for this proposition. In Kepner, the Court stated that the

“privilege of venue, granted by the legisiative body which created

this right of action [under the FELA], cannot be frustrated for

reasons of convenience or expense.” 314 U.S. at 54. The Jones

B-23

Act incorporates the FELA, 46 U.S.C. § 688(a),'° and both the

Jones Act and the FELA have specific venue provisions. The

FELA provides in relevant part:

Under this chapter an action may be brought in a district

court of the United States, in the district court of the

residence of the defendant, or in which the cause of action

arose, or in which the defendant shall be doing business at

the time of commencing the action.

45 U.S.C. § 56.

The portion of the Jones Act which pertains to jurisdiction and

venue provides:

Jurisdiction in [actions under the Jones Act] shall be under

the court of the district in which the defendant employer

resides or in which his principal office is located.

46 U.S.C. § 688(a).

In view of the Supreme Court’s comments as to the unavaila-

bility of the forum non conveniens doctrine in FELA cases, the

degree of similarity between the specific venue provisions under

the Jones Act and under the FELA, and the incorporation of the

FELA into the Jones Act, we believe that the forum non

conveniens doctrine should be unavailable as a ground for dismis-

sal under the Jones Act as it is under the FELA. (Cf La

Seguridad v. Transytur Line, 707 F.2d 1304, 1310, n.10 (11th Cir.

1983) (suggesting that Congress implicitly spoke to, and rejected,

the forum non conveniens doctrine in both FELA and Jones Act

cases); and see Dalla v. Atlas Maritime Co., 562 F. Supp. 752,

757 (C.D. Cal. 1983) (“[W]hen a seaman has a cause of action

based on American law, he comes by right into American

courts.”), aff'd 771 F.2d 1277 (9th Cir. 1985). Finally, we see no

'° Section 688(a) of the Jones Act provides in relevant part: “Any

seaman who shall suffer personal injury in the course of his employment

may, at his election, maintain an action for damages at law, with the

right of trial by jury, and in such action all statutes of the United States

modifying or extending the common-law rght or remedy in cases of

personal injury to railway employees shall apply.” 46 U.S.C. § 688(a).

B-24

reason to depart from the clear weight of authority in those

circuits which have considered this question. We hold that when

the Jones Act applies to a seaman’s claim, that claim may not be

dismissed on the ground of forum non conveniens.

C. The Injunction

When the district court dismissed the plaintiffs’ lawsuits for

forum non conveniens, the plaintiffs who did not settle their

claims reactivated lawsuits they had previously filed in the Texas

state court. In response to this, the district court enjoined the

plaintiffs and their attorneys from “filing and/or prosecuting

actions in the state courts of Texas or any other court in the

United States ... arising out of the air crash on April 28, 1981.

...” We review the grant of this injunction for abuse of discretion.

Golden v. Pacific Maritime Ass'n, 786 F.2d 1425, 1426 (9th Cir.

1986).

The Anti-Injunction Act provides that:

A court of the United States may not grant an injunction to

stay proceedings in a state court except [1] as expressly

authorized by act of Congress or [2] where necessary in aid

of its jurisdiction or [3] to protect or effectuate its judgment.

28 U.S.C. § 2283.

This court strictly construes these three exceptions to the Anti-

Injunction Act. Alton Box Board Co. v. Espirit de Corp., 682 F.2d

1267, 1271 (9th Cir. 1982).

The first exception to the Anti-Injunction Act does not apply

here, because there is no express statutory authorization for an

injunction in this situation. The second exception applies to the

American seaman’s lawsuit, because, under our holding in this

case, the district court will retain jurisdiction over that lawsuit.

See Alton Box, 682 F.2d at 1271. This exception does not apply,

however, to the foreign seamen’s lawsuits because the district

court no longer has jurisdiction over those suits. /d. The district

court held that jurisdiction was more properly in a foreign forum

and dismissed the foreign seamen’s cases. At that point there was

no need for an injunction to protect the district court’s jurisdic-

tion. /d.

B-25

The third exception to the Anti-Injunction Act similarly does

not support the district court’s injunction. This court has held that

a district court may grant an injunction to protect the res judicata

effect of its judgment “where a federal litigant has prevailed on

the merits, yet is threatened with burdensome and repetitious

relitigation of the same issues in a multiplicity of actions.”

Golden, 786 F.2d at 1427. Defendants argue that a determination

on the merits is not required for an injunction against state court

actions when a district court has dismissed a lawsuit for forum

non conveniens arising in the same matters. The wording of our

cases, however, is explicit, and refers to decisions on the merits.

See Golden, 786 F.2d at 1427; Midkiff v. Tom, 725 F.2d 502, 504

(9th Cir. 1984). Here, defendants have prevailed on a procedural

point pertaining to the propriety of the prosecution of the foreign

seamen’s lawsuits in a United States district court. No judgment

on the merits has been rendered. The grant of the injunction

against the foreign seamen prosecuting their lawsuits in state

court violated the Anti-Injunction Act and was an abuse of

discretion.

The recent Fifth Circuit case of Exxon Corporation v. Chick

Kam Choo, 817 F.2d 307 (Sth Cir. 1987) is inapposite. In Exxon,

the su:viving wife of a seaman who had been injured and died on

board ship in Singapore, brought suit in the federal district court

in Houston, Texas. The district court granted the defendants’

motion for summary judgment “as to Plaintiffs’ claims under the

Jones Act, the Death on the High Seas Act, the Longshoremen’s

and Harbor Workers Compensation Act, and the general mari-

time laws of the United States.” Exxon, 817 F.2d at 310 n.4

(emphasis in original). Having thus disposed of these claims on

the merits, the court nonetheless granted the defendants’ motion

to dismiss “under the doctrine of forum non conveniens,...

without prejudice,” and subject to conditions which permitted the

plaintiff to refile her suit in Singapore. /d.

The judgment permanently enjoined the plaintiff from prose-

cuting any action against the defendants in the courts of Texas or

any other state, arising out of or related to the death of the

plaintiffs husband on board ship in Singapore. The plaintiff did

not appeal this judgment and it became final. She then attempted

B-26

to pursue, against the defendants in the state court in Houston,

Texas, the same claims she had filed against them in the federal

district court in Houston. The defendants filed a new suit in

federal court in Houston to enjoin the state proceeding. The

district court granted a permanent injunction enjoining the state

proceeding and sanctioned the plaintiff's attorneys for pursuing it.

The Fifth Circuit, with one member of the three-judge panel

concurring and one dissenting, affirmed the judgment of the

district court. What established the opinion as a majority opinion

was the concurrence of Judge Clark. He pointed out that the

plaintiff was simply bound by the earlier judgment which enjoined

her from relitigating the case in state court; he did not concur in

Judge Gee’s forum non conveniens analysis. Exxon, therefore, is

not a majority opinion on forum non conveniens and hence is not

in conflict with our unanimous opinion in this case.

B-27

CONCLUSION

The district court did not abuse its discretion in reconsidering

the earlier denial of the defendants’ forum non conveniens mo-

tions. The district court correctly determined that foreign law

applies to the claims of the foreign seamen, and it did not abuse

its discretion in dismissing the foreign seamen’s lawsuits for

forum non conveniens. The district court did abuse its discretion

in dismissing the lawsuit on behalf of the deceased American

seaman, because the Jones Act applies to this claim. Nickol, 743

F.2d 289; Needham, 719 F.2d 1481; Szumlicz, 698 F.2d 1192.

The injunction enjoining the foreign seamen from prosecuting

their claims in state court is precluded by the Anti-Injunction

Act. Accordingly, that portion of the injunction is vacated. Since

the district court will be retaining the lawsuit filed on behalf of the

deceased American seaman, however, that portion of the injunc-

tion enjoining the prosecution of the lawsuit on his behalf in any

other court in the United States is appropriate but is modified to

except prosecution in the United States District Court for the

Northern District of California. The portion of the judgment

granting the permanent injunction as to the claim for the de-

ceased American seaman is affirmed as modified.

AFFIRMED IN PART, REVERSED IN PART, VACATED

IN PART, MODIFIED AND REMANDED.

APPENDIX C

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA

No. C-82-0836 RPA

And Related Actions:

82-1866 RPA C-82-2565 RPA C-82-2566 RPA

82-2568 RPA C-82-2569 RPA C-83-0604 RPA

-83-0605 RPA C-83-0606 RPA C-83-0607 RPA

C-83-1022 RPA C-83-4025 RPA

Cora E. SHERRILL, etc.,

Plaintiffs,

Cc

Cc

C

VS.

BRINKERHOFF MARITIME DRILLING CORPORATION, et al.,

Defendants.

ORDER

This matter came on for hearing on defendants’ Motion for

Issuance of Formal Findings of Fact and Clarification of Stay

Order. The Court has received and considered the documents

filed by the parties, has heard oral argument, and has considered

all supplemental papers submitted.

The Court grants defendants’ motion, so this matter may be

heard on appeal by the Ninth Circuit Court of Appeals, and issues

the following findings in connection with the choice of law

question. In doing so, the Court follows the suggestion in the

Ninth Circuit Court of Appeals’ Order of June 20, 1984 to make

(a) a definitive finding as to the shipowner’s base of operations

and (b) a finding regarding the place where contracts of employ-

ment were entered into.

In making these findings, the Court has construed the papers in

the light most favorable to the plaintiffs, the non-moving parties,

C-2

both here and in the underlying motions. The Court believes that

it would be the most expedient course if the Court of Appeals

were to decide the choice of law issue before this action proceeds.

The Court sets forth findings as to choice of law pursuant to

those stated in the leading case of Lauritzen v. Larsen, 345 U.S.

571, 73 S.Ct. 921, 97 L.Ed.1254 (1953) and one in a later case,

referred to by the Court of Appeals, Hellenic Lines v. Rhoditis,

398 U.S. 306, reh. denied, 400 U.S. 856 (1970).

In some instances the Court merely reiterates as formal find-

ings of fact points made in its prior Opinion and Order, which

contains more discussion. To that extent, these findings are to be

read in conjunction with the Court’s previous Opinion and Order

dated October 11, 1983.

FINDINGS OF FACT

1. The place of the wrongful act was Indonesia.

2. The law of the flag is the law of the United States.

3. The allegiances or domiciles of the injured parties are as

follows. Three plaintiffs (or plaintiffs decedent), Sherrill,

Schwartz, and Craig, are American. The remaining sever plain-

tiffs, Cole, Lowry, Jones, Chee, Albuquerque, Zipfel, and

Grunke, are foreign, with a variety of countries represented. Most

of the foreign plaintiffs are English-speaking citizens or domicil-

iaries of Canada, Australia, the United Kingdom and New

Zealand; only two are citizens of Singapore, and none are

Indonesian.

4. The allegiance of the defendant shipowner is the United

States.

5. The place where the contracts of plaintiffs’ employment

were made was previously an unresolved issue. Defense counsel

represented to the Court at the hearing that as to those plaintiffs

who did enter into formal contracts of employment, they were

entered into in foreign locales. The Court has previously implicitly

found that any contracts were entered into in foreign locations,

and now formally so finds.

| cea ieee

C-3

6. Foreign forums in either Singapore or Indonesia are acces-

sible to the plaintiffs.

7. The law of the forum is American.

8. The shipowner’s base of operations is a matter which this

Court previously declined to fix since it decided that substantial

contacts with the United States were already present. The Court

assumed a foreign base of operatons, see e.g., Vaz Borralho v.

Keydrill Co., 696 F.2d 379, 383, n.4 (Sth Cir. 1983). Even

assuming a foreign base of operations, the Court previously

decided that application of American law was nevertheless war-

ranted in these proceedings.

The Court now finds that the relevant base of operations of the

vessel Brinkerhoff I was either Singapore of Indonesia, or both.

The overall base of operations of the corporate shipowner defen-

dant, Brinkerhoff Maritime Drilling Corporation, was in San

Francisco, California.

All proceedings are stayed pending the Court of Appeals’

resolution of defendants’ interlocutory appeal.

IT IS SO ORDERED.

DATED: October 22, 1984

ROBERT P. AGUILAR

Robert P. Aguilar

United States District Judge

APPENDIX D

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA

No. C-82-0836-WWS

Cora E. SHERRILL, Individually and as Administratrix of the

Estate of Max O. Sherrill, deceased,

Plaintiff

¥.

BRINKERHOFF MARITIME DRILLING, a corporation, et al.,

Defendants.

No. C-82-2565-WWS

TIMOTHY P. JONES,

Plaintiff,

7

BRINKERHOFF MARITIME DRILLING, a corporation, et al.,

Defendants.

No. C-82-2566-WWS

DAVID ALFRED Lowry,

Plaintiff,

v.

ERINKERHOFF MARITIME DRILLING, a corporation, et al.,

Defendants.

D-2

No. C-82-2568-WWS

DAVID S. SCHWARTZ, as Adminstratrnix of the Estate of James

C. Owen,

Plaintiff,

V.

BRINKERHOFF MARITIME DRILLING, a corporation, et al.,

Defendants.

No. C-82-2569-WWS

MURRAY ROBERT COLE,

Plaintiff,

¥.

BRINKERHOFF MARITIME DRILLING, a Corporation, et al.,

Defendants.

No. C-83-0603-WWS

SHEREEN RAMONA ZIPFEL, Individually and as Adminstratrix

of the Estate of lan Charles Zipfel, deceased,

Plaintiff,

Ws

HALLIBURTON Co., et al.,

Defendants.

No. C-83-0604-WWS

TEN FONG Craia, Individually and as Adminstratrix of the

Estate of William Henry Craig, deceased,

Plaintiff,

v.

ATLANTIC RICHFIELD Co., et al.,

Defendants.

D-3

No. C-83-0605-WWS

CHAN LUCK CHEE,

Plaintiff,

we

McCLELLAND ENGINEERS, INC., et al.,

Defendants.

No. C-83-0606-WWS

PATRICK PAUL GRUNKE,

Plaintiff,

we

ATLANTIC RICHFIELD Co., et al.,

Defendants.

No. C-83-0607-WWS

VYNER GERARD ALBUQUERQUE,

Plaintiff,

Via

OCEANEERING INTERNATIONAL, INC., et al.,

Defendants.

No. C-83-1022-WWS

MICHAEL WAYNE CRAIG,

, Plaintiff,

Mia

BRINKERHOFF MARITIME DRILLING, et al.,

Defendants.

MEMORANDUM OF OPINION

AND ORDER

Before the Court are eleven actions brought by or on behalf of

seamen who were killed or injured in an air crash in Indonesia.

These actions were related pursuant to Local Rule 205-2 for

ooo

D-4

assignment to a single judge; they have, however, not been

consolidated. Pursuant to the court’s assignment plan they were

later reassigned from that judge to the undersigned.

Prior to the reassignment, defendants filed motions to dismiss

for forum non conveniens. The motions were denied by another

judge of this court. Following reassignment, defendants renewed

their motions. The Court granted those motions by order of June

10, 1985, but on reconsideration vacated its order on July 25,

1985. The motions are now before the Court for renewed consid-

eration and decision.

I

FACTS

The facts material to the disposition of these motions are

undisputed and are briefly summarized below.

On April 28, 1981, an aircraft operated by P.T. Airfast Services

(“Airfast”), an Indonesian corporation, crashed on approach for

~ landing at Simpang Tiga Airport, Pekanbaru, North Sumatra,

Indonesia. The aircraft had been chartered by Hudbay Oil

(Malacca Strait) Limited (“Hudbay”) to transport employees of

Brinkerhoff Maritime Drilling Corporation (“BMD”) between

Singapore and Pekanbura, Sumatra. From the airport at

Pekanbaru, the passengers were to be transported by helicopter to

the drilling barge Brinkerhoff I, then operating in the Straits of

Malacca in Indonesian waters.

The Brinkerhoff I is an American flag drilling barge, registered

in San Francisco, California, owned by BMD, a Delaware corpo-

ration with its home base in San Francisco. In October 1979,

BMD entered into a Day-Work Drilling Contract with Atlantic

Richfield Indonesia, Inc., (“ARII”), negotiated in Indonesia.

Pursuant to this contract, BMD agreed to furnish and operate the

Brinkerhoff I in areas of operations designated by ARII. In

February, 1981, ARII directed BMD to move the barge to a lease

concession operated by Hudbay. ARII and Hudbay executed an

agreement for use of the barge in March, 1981, governing the

drilling services to be performed by her on Hudbay’s lease

D-5

concession. Essentially, that agreement provided that BMD

would perform drilling operations for Hudbay as instructed by

ARII.

The crew of the Brinkerhoff I lived on board the vessel and

rotated their time on and time off in two-week increments. They

were shuttled between Indonesia and Singapore in the Airfast

aircraft chartered by Hudbay under its contract with ARII. The

crash occurted as members of the crew were returning to Indone-

sia enroute to the drilling barge. At the time of the crash, the

aircraft was in contact with Indonesian air traffic controllers at

Simpang Tiga Airport. Indonesian authorities subsequently inves-

tigated the crash and issued a report attributing it to pilot error

and weather conditions. The crew and five of the thirteen passen-

gers on the plane died in the crash; others were injured.

These actions are brought by or on behalf of ten of the

passengers, all of whom were employed on the Brinkerhoff I at

the time. All are brought under the Jones Act, 46 U.S.C. § 688,

and most also allege claims under general maritime and Califor-

nia common law.

Four of the actions are brought on behalf of three American

seamen:

C-82-0836: brought on behalf of Max Sherill, a United

States citizen and resident of New Mexico at the time of his

death in the accident, by the administratrix of his estate, also

a United States citizen and resident of New Mexico.

C-82-2568: brought on behalf of James Owen, a United

States citizen and resident of Minnesota at the time of his

death in the accident, by the administratrix of his estate.

C-83-0604: brought on behalf of Wm. Henry Craig, a

United States citizen and resident of California at the time of

his death in the accident, by Ten Fong Craig, as administra-

trix of his estate.

C-83-1022: brought on behalf of Wm. Henry Craig, by

his executor and heirs, United States citizens and residents

of California.

————EEEEE

D-6

The remaining actions are all brought by or on behalf of

seamen none of whom was a citizen or resident of the United

States:

C-82-2565: brought by Timothy Peter Jones, a British

subject residing in Britain.

C-82-2566: brought by David Lowry, a citizen of Ca-

nada residing in Canada or Singapore.

C-82-2569: brought by Murray Robert Cole, a citizen of

New Zealand residing in the Philippines.

C-83-0603: brought by Shereen Zipfel, a citizen of Sin-

gapore, as administratrix of the estate of Ian Charles Zipfel,

a British subject then residing in Britain or Singapore.

C-83-0605: brought by Chan Chuck Lee, a citizen and

resident of Singapore.

C-83-0606: brought by Patrick Paul Grunke, a citizen

and resident of Australia.

C-83-0607: brought by Vyner Gerard Albuquerque, a

citizen and resident of Singapore.

I]

RECONSIDERATION

The threshold question confronting the Court is whether to

reconsider the prior denial of the motions by another judge.

Plaintiffs argue that the denial is the iaw of the case and bars

reconsideration. The Court is mindful of the institutional and

policy considerations militating against reconsideration of an

earlier ruling by a judge of the same court. As a rule “the various

judges who sit in the same court should not attempt to overrule

the decisions of each other. ...” Castner v. First National Bank

of Anchorage, 278 F.2d 376, 379 (9th Cir. 1960) (citing Shreve v.

Cheesman, 69 F. 785, 791 (8th Cir. 1895) ). This rule is premised

upon principles of comity and uniformity, and the need to

preserve the orderly functioning of the judicial process. Castner,

supra, 278 F.2d at 379-380. But it does not raise an absolute bar

to reexamining questions previously determined. It is well estab-

D-7

lished in this circuit that one district judge in a multi-judge court

may modify or overrule an interlocutory order of another judge

sitting in the same case for “cogent reasons” or where “excep-

tional circumstances” are presented. Greyhound Computer Corp.

v. IBM, 559 F.2d 488 (9th Cir. 1977), cert. denied, 434 U.S. 1040

(1978); United States v. Desert Gold Mining Co., 433 F.2d 713

(9th Cir. 1970); Tanner Motor Livery, Ltd. v. Avis, Inc., 316 F.2d

804 (9th Cir.), cert. denied, 375 U.S. 821 (1963); Castner, supra.

Thus it makes no difference whether the interlocutory order is

reconsidered by the same judge or by a different judge to whom

the case has been reassigned. United States v. Desert Gold Mining

Co., 433 F.2d 713, 715 (9th Cir. 1970).

In the prior order denying the motions, filed October 14, 1983,

the court stated the issue to be “whether [it] should retain these a

cases and try them under the Jones Act, or whether plaintiffs

should be remitted to appropriate proceedings elsewhere.” (Order

p. 4) It then analyzed and discussed at some length the issue

whether plaintiffs could maintain a claim under the Jones Act.

The court concluded that “American !aw [applies] to all actions,

and retain[ed] jurisdiction.” It went on to add: “The Court does

no more at this time than decide the choice-of-law question.”

(p. 9) The motions to dismiss for forum non conveniens were,

however, denied without further discussion. By order filed Janu-

ary 16, 1984, the court, pursuant to 28 U.S.C. § 1292(b), certified

for an interlocutory appeal only this question: “What law, United

States law (i.e. the Jones Act), or foreign law, applies to this

matter.” After further proceedings in which the court made

certain additional findings (by order filed October 29, 1984), the

court of appeals denied the petition for an interlocutory appeal.

The status of these motions at this time, therefore, is that while

the court denied them, a ruling from which no appeal was sought,

it did not expressly decide the forum non conveniens issue. As

plaintiffs themselves have said in a memorandum filed following

the ruling: “While this Court did not expressly decide the forum

non conveniens issue ...it did deny the forum non conveniens

motions.” (Response of plaintiffs in opposition to defendants’

joint motion for issuance of formal findings of fact to enable

appeal to proceed, filed Sept. 5, 1984, p. 23)

ree

D-8

Presumably the court considered itself bound by its ruling

applying the Jones Act to all of these actions to deny the motions

for forum non conveniens. As hereafter discussed, the Supreme

Court’s decision in Piper Aircraft Co. v. Reyno, 454 U.S. 235

(1981), not considered in the prior ruling, requires reexamination

of the assumption on which the court acted.

More importantly, the court made its ruling premised on the

propriety of the so-called “global treatment” of all of these cases.

The Ninth Circuit, however, undercut this premise in Phillips v.

Amoco Trinidad Oil Co., 632 F.2d 82, (9th Cir. 1980), cert.

denied, 451 U.S. 920 (1981), when it said:

But the allegiance of the injured seaman has always been

viewed as a relevant and important consideration in deter-

mining the appropriate law to apply.

We know of no authority for the view that foreign nationals

may predicate a right to have American law applied on the

rights of similarly situated American citizens. The suggestion

that one follows from another is another “variety of social

jingoism, which presumes that the ‘liberal purposes’ of

American law must be exported to wherever our multina-

tional corporations are permitted to do business.” (Emphasis

added)

Cogent reasons therefore exist for reconsideration of the prior

ruling.

II]

CHOICE OF LAW

All plaintiffs bring their actions pursuant to the Jones Act,

which states in part that “[a]ny seaman who shall suffer personal

injury in the course of his employment, may... maintain an

action for damages at law,.... ” 46 U.S.C. § 688. The Act

applies to the death or injury of seamen occurring while being

transported by their employer to or from the vessel. See e.g.,

Higginbotham v. Mobil Oil Corp., 545 F.2d 422, 433 (Sth Cir.

1977) (Jones Act applied to seaman killed in crash of helicopter

ferrying him from drilling rig). For purposes of these motions, the

D-9

Court assumes that plaintiffs or their decedents were seamen for

Jones Act purposes.

The choice of law rule which governs application of the Act

was laid down in Lauritzen v. Larsen, 345 U.S. 571 (1953), and

Hellenic Lines Ltd. v. Rhoditis, 398 U.S. 306 (1970). The Court

there identified the eight factors controlling the determination

whether the Act applies: (1) the place of the wrongful act;

(2) the law of the flag;-(3) the allegiance or domicile of the

injured party; (4) the allegiance of the defendant shipowner,

(5) the place of the contract; (6) the inaccessibility of the foreign

forum; (7) the law of the forum; and (8) the shipowner’s base of

operations.

Lauritzen requires courts in applying these factors to compare

the substantiality of this country’s interest in a given action with

that of other nations. Conflicts between competing laws are

resolved by “ascertaining and valuing [the enumerated] points of

contact between the transaction and the states or governments

whose competing laws are involved.” 345 U.S. at 582. Rhoditis

emphasized that application of the Lauritzen factors is not

mechanical, but requires courts carefully to review and weigh

each factor “in light of the national interest served by assertion of

the Jones Act jurisdiction.” 398 U.S. at 309.

Lauritzen and Rhoditis contemplated ocean-going vessels gen-

erally, true maritime vessels that ply the seas as an integral part of

the shipping industry. As to these vessels, Gilmore and Black

state:

American law will... be applied in actions brought on

account of injuries suffered on American-flag ships, whether

the plaintiffs are American or foreign, resident or non-

resident, seamen, harbor-workers, passengers, guests or, for

that matter, pirates. By taking out registry in this country,

the shipowner consents in effect to the application of the law

‘Romero v. International Terminal Operating Co., 358 U.S. 354

(1959), extended the principles enunciated in Lauritzen to cases involv-

ing general maritime law.

aS EE ST ARR are

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of the United States. This proposition has seemed so self-

evident that it appears never to have been questioned.

G. Gilmore & C. Black, The Law of Admiralty at 477 (2d ed.

1975).

If the Brinkerhoff I were a traditional ocean-going vessel, so

that the place of injury of any particular seaman would be

fortuitous, the law of the flag would be of paramount importance.

The rationale for this result rests “on the pragmatic basis that

there must be some law on shipboard, that it cannot change at

every change of waters, and no experience shows a better rule

than that of the state that owns [the ship]. Lauritzen, 345 U.S.

at 585. For the same reason, the allegiance of the shipowner and

the shipowner’s corporate base of operations are also significant

factors under Lauritzen and Rhoditis. Defendants concede that if

these factors were controlling, American law should be applied to

all these actions.

The relative value attached to these factors has undergone

change, however, as they have come to be applied to drilling ngs

Such vessels differ from traditional ocean-going vessels in that

they move comparatively infrequently and only over short dis-

tances. As a result the element of fortuity in the place where an

accident occurs has been largely eliminated. Phillips v. Amoco

Trinidad Oil Co., supra, 632 F.2d at 87; Koke v. Phillips Petro-

leum Co., 730 F.2d 211 (Sth Cir. 1984); Bailey v. Dolphin

International, Inc., 697 F.2d 1268 (Sth Cir. 1983); Vaz Borralho

v. Keydril Co., 696 F.2d 379 (Sth Cir. 1983); Chiazor v. Trans-

world Drilling Co., 648 F.2d 1015 (Sth Cir.) reh’g denied, 659

F.2d 1075 (Sth Cir. 1982), cert. denied, 455 U.S. 1019 (1982);

Zekic v. Reading & Bates Drilling Co., 536 F. Supp. 23 (E.D. La.

1981), modified 680 F.2d 1107 (Sth Cir. 1982). In drilling ng

cases, therefore, the place of the wrong, the domicile of the

injured person and the place where the contract was made take on

greater significance than other factors. Phillips, 632 F.2d at 87

For the same reason, the corporate base of operations is consid-

ered of less significance than the base of day-to-day operations

Koke v. Phillips Petroleum Co., 730 F.2d at 220; Vaz Borratho \

Keydril Co., 696 F.2d at 389.

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Plaintiffs argue that the Brinkerhoff I is more akin to a

traditional blue water vessel than a fixed drilling ng, noting that

she moves from drilling site to drilling site in various Far Eastern

Seas.* In its order of October 11, 1983, the court observed that

the Brinkerhoff I “appears to have been a stationary vessel rather

than one that travelled the international seas,” but nonetheless

considered the law of the flag a substantial factor.) The undis-

puted facts show that the Brinkerhoff I did not move under her

* Plaintiffs also argue that the Ninth Circuit's order of June 21. 1984.

denying interlocutory review, indicates that the Ninth Circuit considered

the Brnkerhoff I as a traditional vessel rather than a dniling ng. The

Ninth Circuit stated in part:

[W]e do not have an adequate record for review. We note. for

example, the lack of a finding on the question of the shipowner’s

base of operations, and the lack of clear evidence on the places

where the contracts of employment may have been made. See

generally Hellenic Lines v. Rhoditis, 389 U.S. 306, 308-09 (1970)

If the district court and the parties create a better record for review

before the proceedings have continued so far as to discourage

interlocutory action, we see no reason why the defendants may not

request a certification for interlocutory appeal from the district

court again

This clearly was not a ruling on the vessel's status

‘In its order of October 22, 1984, the court made the following

additional findings of fact, without analysis, however, of their signifi-

cance to the choice of law in these cases:

|. The place of the wrongful act is Indonesia

2. The law of the flag is the United States

3. The allegiance or domiciles of the injured Parties are as

follows: three of the plaintiffs are United States citizens. Of the

remaining seven plaintiffs, two are citizens of Singapore and the

others are domicilianies of Canada, Australia, the United Kingdom

and New Zealand

4. The allegiance of the defendant shipowner is the United

States.

5. The employment contracts were entered into “in foreign

locations.”

6. Foreign forums in either Singapore or Indonesia are accessi-

ble to the plaintiffs

7. The law of tte forum is American.

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own power, having to be towed by other vessels, and is described

in the Certificate of Registry as a “barge.” Although she was

moved to various drilling locations in Indonesian and other South

East Asian waters, she was not in any sense a traditional maritime

vessel “plying the seas as an integral part of the shipping indus-

try.” Chiazor, supra, 648 F.2d at 1018. The drilling rig analysis

applies to dniling vessels that remain stationary or move only

infrequently and over short distances. Nicol v. Gulf Fleet Supply

Vessels, Inc., 743 F.2d 289, 297 (Sth Cir. 1984). Between 1979

and February, 1983, the Brinkerhoff I operated at the following

locations:

June 1979-Sept. 1979 — South China Sea

Sept. 1979-Nov. 1979 — Singapore Harbor

Nov. 1979-Apnl 1981 — Java Sea

Apnl 1981-June 1981 — Malacca Straits

June 1981 — to Singapore Harbor for ten days of

repairs

June 1981-Feb. 1983 — Java Sea

This record shows that the Brinkerhoff I, while not at a single

fixed location, spent long periods of time at only a few drilling

locations in the general vicinity of Indonesia.

These undisputed facts and the court’s prior findings viewed in

the light of Phillips, supra, and the other cited cases, compels the

conclusion that the Brnkerhoff I was a drilling vessel for purposes

of applying choice of law rules.

In its prior ruling denying the motions, the court declined to

follow Phillips because of the “presence of American plaintiffs”

and the fact that “most of the remaining plaintiffs are English-

speaking.” (Order of Oct. 12, 1983, p.8). Phillips, however, does

not turn on the fact that all of the plaintiffs were Trinidad citizens.

It was because of the stationary character of the operation in

which plaintiffs were injured or killed that the court of appeals

gave controlling weight to the place of the wrongful act, the

8. The relevant base of operations of the vessel Brinkerhoff |

was either Singapore or Indonesia, or both. The overall base of the

corporate shipowner defendant, BMD, was in San Francisco,

California.

D-13

allegiance and domicile of the workers, the place of contract, and

the base of the operations.

Nor is it relevant that all of the factors do not coincide in a

single country. As the court held in Bailey v. Dolphin Interna-

tional, Inc., supra, 697 F.2d at 1277-78:

It is certainly true that where the factors emphasized in

Chiazor {and Phillips] all coincide in one country, the

choice of law determination points strongly to the application

of that country’s law, but it does not follow that the applica-

tion of American law is required, as if by default, when these

factors are spread among several other foreign countries, and

the only contact with the United States remains ultimate

American ownership or control of the business ventures

engaged in the drilling operation.

Further, the Bai/ey court specifically rejected the argument made

by plaintiffs here that the involvement of several countries shifts

greater emphasis to the place of ownership and base of operations.

The court stated:

[T]he substantiality of the base of operations—factor or the

law of the domicile of the ultimate owner, in an offshore

drilling rig non-traditional maritime context, does not in-

crease merely because the factors given added significance in

Chiazor are spread among more than one foreign nation.

Id.

See also Martyn v. Transworld Drilling Company Ltd., No. 78-

3423 (E.D. La. November 29, 1979), aff'd 619 F.2d 82 (Sth Cir.

1980) (American law not applied where Irish citizen injured on

American-owned drilling platform in the North Sea off the coast

of the United Kingdom); Zekic v. Reading & Bates Drilling Co.,

supra (Italian, not American law, applied where Yugoslavian

citizen injured in Italian territorial waters on American-owned

drilling rig flying American flag. )

Finally, as Phillips makes clear, the mere presence of American

plaintiffs is not sufficient to entitle foreign plaintiffs to have the

Jones Act applied to their cases. Phillips, supra, 632 F.2d at 89. A

closely analogous decision is /n Re Ocean Ranger Sinking Off

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Newfoundland, 589 F. Supp. 302 (E.D. La. 1984), involving

consolidated actions arising from the sinking of the Ocean

Ranger, an oil drilling vessel, off the coast of Newfoundland,

Canada. American and Canadian crewmen died in the accident.

Both the law of the flag and the “ultimate base of corporate

operations” were American. The place of the wrongful act and the

day-to-day base of operations were Canadian. The allegiance of

the injured seamen and the place of the contract were divided

between this country, as to those actions filed as a result of the

deaths of American crewmen hired in America by American

companies, and Canada, as to those actions filed as a result of the

deaths of Canadian crewmen hired in Canada by Canadian

companies. The court cautioned that this unique combination of

choice of law factors mandated a result different from previous

drilling rig cases. Specifically, the court concluded that American

law applied to those actions filed as a result of the deaths of

American crew members and Canadian law applied to those

actions filed as a result of the deaths of Canadian crew members.

The court explained its decision as follows:

In the actions filed as a result of Canadian deaths, all four of

the factors given added significance in the drilling mg con-

text, allegiance of the seamen, place of the wrongful act, and

day-to-day base of operations, point toward application of

Canadian law. These factors are not outweighed by the fact

that the law of the flag and the ultimate base of operations

were American, especially in the drilling rg context. In the

actions filed as a result of American deaths, two of the four

factors given added significance in the drilling rig context,

place of the wrongful act and day-to-day base of operations,

point toward the application of Canadian law and the alle-

giance of the seamen, point toward application of American

law. However, as to the actions filed as a result of American

deaths, the fact that the law of the flag and the ultimate base

of corporate operations were American does tip the balance

in favor of applying American law.

Id. at 320.

The court expressly rejected plaintiffs’ argument that the

Ocean Ranger drilling operation be viewed as a single “shipping

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transaction” “requiring one catholic choice of law determination.”

589 F. Supp. at 320 n.21. The court instead considered each crew

member’s employment as a maritime transaction for which a

choice of law determination must be made. The court noted that

“the appropriateness of this approach is evident from analysis of

the multifactor Lauritzen-Rhoditis test itself, which contains two

factors, allegiance of the seaman and place of the contract, that

explicitly require individualized treatment.” /d.

Plaintiffs here contend that the same choice of law should

apply to ail plaintiffs

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