# Petition for Writ of Certiorari — Halliburton Company v. Zipfel (Nos. 87-1391, 87-1122, 87-1698) > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385019_1374%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 1987 ## Text 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. A-3 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: Juris [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385019_1374%3A1. Public record. Not legal advice.