The Supreme Court/The Supreme Court.iso/pc/ascii/1991/91_1950/91_1950.zd

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SUPREME COURT OF THE UNITED STATES
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No. 91-1950
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AMERICAN DREDGING COMPANY, PETITIONER v.
WILLIAM ROBERT MILLER
on writ of certiorari to the supreme court
of louisiana
[February 23, 1994]

  Justice Kennedy, with whom Justice Thomas joins,
dissenting.
  The Court gives a careful and comprehensive history
of the forum non conveniens doctrine but, in my respect-
ful view, draws the wrong conclusions from this account
and from our precedents.  Today's holding contradicts
two just and well-accepted principles of admiralty law:
uniformity and the elimination of unfair forum selection
rules.  When hearing cases governed by the federal
admiralty and maritime law, the state courts, to be sure,
have broad discretion to reject a forum non conveniens
motion.  They should not be permitted, however, to
disregard the objection altogether.  With due respect, I
dissent.
  Neither the Court nor respondent is well positioned in
this case to contend that the State has some convincing
reason to outlaw the forum non conveniens objection.
For the fact is, though the Court seems unimpressed by
the irony, the State of Louisiana commands its courts to
entertain the forum non conveniens objection in all
federal civil cases except for admiralty, the very context
in which the rule is most prominent and makes most
sense.  Compare La. Code Civ. Proc. Ann. Art. 123(B)
(West Supp. 1993) (-Except as provided in Paragraph C,
upon the contradictory motion of any defendant in a civil
case filed in a district court of this state in which a
claim or cause of action is predicated solely upon a
federal statute and is based upon acts or omissions
originating outside of this state, when it is shown that
there exists a more appropriate forum outside of this
state, taking into account the location where the acts
giving rise to the action occurred, the convenience of the
parties and witnesses, and the interest of justice, the
court may dismiss the suit without prejudice . . . .-)
with Art. 123(C) (-The provisions of Paragraph B shall
not apply to claims brought pursuant to 46 U. S. C.
688 [the Jones Act] or federal maritime law.-).
Louisiana's expressed interest is to reach out to keep
maritime defendants, but not other types of defendants,
within its borders, no matter how inconvenient the
forum.  This state interest is not the sort that should
justify any disuniformity in our national admiralty law.
  In all events, the Court misapprehends the question it
should confront.  The issue here is not whether forum
non conveniens originated in admiralty law, or even
whether it is unique to that subject, but instead whether
it is an important feature of the uniformity and har-
mony to which admiralty aspires.  See Southern Pacific
Co. v. Jensen, 244 U. S. 205, 216 (1917).  From the
historical evidence, there seems little doubt to me that
forum non conveniens is an essential and salutary
feature of admiralty law.  It gives ship owners and
operators a way to avoid vexatious litigation on a
distant and unfamiliar shore.  By denying this defense
in all maritime cases, Louisiana upsets international and
interstate comity and obstructs maritime trade.  And by
sanctioning Louisiana's law, a rule explicable only by
some desire to disfavor maritime defendants, the Court
condones the forum shopping and disuniformity that the
admiralty jurisdiction is supposed to prevent.
  In committing their ships to the general maritime
trade, owners and operators run an unusual risk of
being sued in venues with little or no connection to the
subject matter of the suit.  A wage dispute between
crewman and captain or an accident on board the vessel
may erupt into litigation when the ship docks in a
faraway port.  Taking jurisdiction in these cases, instead
of allowing them to be resolved when the ship returns
home, disrupts the schedule of the ship and may
aggravate relations with the state from which it hales.
See Bickel, The Doctrine of Forum Non Conveniens As
Applied in the Federal Courts in Matters of Admiralty,
35 Cornell L. Q. 12, 20-21 (1949) (-holding a ship and
its crew in an American port, to which they may have
come to do no more than refuel, may, in the eyes of the
nation of the flag be deemed an undue interference with
her commerce, and a violation of that `comity and
delicacy' which in the more courtly days of some of the
earlier cases were considered normal among the nations-
(footnote omitted)).
  From the beginning, American admiralty courts have
confronted this problem through the forum non conveni-
ens doctrine.  As early as 1801, a Pennsylvania District
Court declined to take jurisdiction over a wage dispute
between a captain and crewman of a Danish ship.
Willendson v. Forsoket, 29 F. Cas. 1283 (No. 17,682) (Pa.
1801).  -It has been my general rule,- explained the
court, -not to take cognizance of disputes between the
masters and crews of foreign ships.-  Id., at 1284.
-Reciprocal policy, and the justice due from one friendly
nation to another, calls for such conduct in the courts of
either country.-  Ibid.
  Dismissals for reasons of comity and forum non
conveniens were commonplace in the 19th century.  See,
e.g., The Infanta, 13 F. Cas. 37, 39 (No. 7,030) (SDNY
1848) (dismissing claims for wages by two seamen from
a British ship; -This court has repeatedly discoun-
tenanced actions by foreign seamen against foreign
vessels not terminating their voyages at this port, as
being calculated to embarrass commercial transactions
and relations between this country and others in
friendly relations with it-); The Carolina, 14 F. 424, 426
(La. 1876) (dismissing seaman's claim that he was
beaten by his crewmates while on board a British ship;
-for courts to entertain this and similar suits during a
voyage which the parties had agreed to make at inter-
mediate points at which the vessel might touch, would
impose delays which might seriously and uselessly
embarrass the commerce of a friendly power-); The
Montapedia, 14 F. 427 (ED La. 1882) (dismissing suit by
Chinese plaintiffs against a British ship); The Walter D.
Wallet, 66 F. 1011 (SD Ala. 1895) (dismissing suit by
British seaman against master of British ship for costs
of medical care while in a United States marine hospi-
tal).  The practice had the imprimatur of this Court.
See Mason v. Ship Blaireau, 2 Cranch 240, 264 (1804)
(Marshall, C.J.) (recognizing forum non conveniens
doctrine but not applying it in that case); The Belgen-
land, 114 U. S. 355, 362-369 (1885) (same); Charter
Shipping Co. v. Bowring, Jones & Tidy, Ltd., 281 U. S.
515, 517 (1930) (affirming forum non conveniens dis-
missal of maritime dispute between British firms).  By
1932, Justice Brandeis was able to cite -an unbroken
line of decisions in the lower federal courts- exercising
-an unqualified discretion to decline jurisdiction in
suits in admiralty between foreigners.-  Canada Malting
Co. v. Paterson Steamships, Ltd., 285 U. S. 413, 421-
422, and nn. 2-4 (affirming forum non conveniens
dismissal of maritime dispute between Canadian ship-
ping companies).
  Long-time foreign trading partners also recognize the
forum non conveniens doctrine.  The Court notes the
doctrine's roots in Scotland.  See La Soci-t- du Gaz de
Paris v. La Soci-t- Anonyme de Navigation -Les Arma-
teurs Fran-ais,- [1926] Sess. Cas. 13 (H. L. 1925)
(affirming dismissal of breach of contract claim brought
by French manufacturer against French ship owner who
had lost the manufacturer's cargo at sea).  English
courts have followed Scotland, although most often they
stay the case rather than dismiss it.  See The Atlantic
Star, [1974] App. Cas. 436 (H. L. 1973) (staying action
between a Dutch barge owner and a Dutch ship owner
whose vessels had collided in Belgian waters, pending
the outcome of litigation in Antwerp); The Po, [1990] 1
Lloyd's Rep. 418 (Q. B. Adm. 1990) (refusing to stay
action between Italian ship owner and American ship
owner whose vessels had collided in Brazilian waters);
The Lakhta, [1992] 2 Lloyd's Rep. 269 (Q. B. Adm. 1992)
(staying title dispute between Latvian plaintiffs and
Russian defendant, so that plaintiffs could sue in
Russian court).  The Canadian Supreme Court has
followed England and Scotland.  See Antares Shipping
Corp. v. Delmar Shipping Ltd. (The Capricorn), [1977] 1
Lloyd's Rep. 180, 185 (1976) (citing Atlantic Star and
Soci-t- du Gaz).
  From all of the above it should be clear that forum
non conveniens is an established feature of the general
maritime law.  To the main point, it serves objectives
that go to the vital center of the admiralty pre-emption
doctrine.  Comity with other nations and among the
States was a primary aim of the Constitution.  At the
time of the framing, it was essential that our prospec-
tive foreign trading partners know that the United
States would uphold its treaties, respect the general
maritime law, and refrain from erecting barriers to
commerce.  The individual States needed similar assur-
ances from each other.  See The Federalist No. 22, pp.
143-145 (C. Rossiter ed. 1961) (Hamilton); Madison,
Vices of the Political System of the United States, 2
Writings of James Madison 362-363 (G. Hunt ed. 1901).
Federal admiralty and maritime jurisdiction was the
solution.  See 2 J. Story, Commentaries on the Constitu-
tion of the United States 1672 (5th ed. 1833); The
Federalist No. 80, supra, at 478 (Hamilton).  And so,
when the States were allowed to provide common law
remedies for in personam maritime disputes through the
saving to suitors clause, it did not follow that they were
at liberty to set aside the fundamental features of
admiralty law.  -The confusion and difficulty, if vessels
were compelled to comply with the local statutes at
every port, are not difficult to see. . . .  [T]he Union was
formed with the very definite design of freeing maritime
commerce from intolerable restrictions incident to such
control.-  Washington v. W. C. Dawson & Co., 264 U. S.
219, 228 (1924).  Accord, The Lottawanna, 21 Wall. 558,
575 (1875); Jensen, 244 U. S., at 215-217.
  Louisiana's open forum policy obstructs maritime
commerce and runs the additional risk of impairing
relations among the states and with our foreign trading
partners.  These realities cannot be obscured by charac-
terizing the defense as procedural.  See ante, at 10-11;
but see Bickel, 35 Cornell L. Q., at 17 (-[T]he forum non
conveniens problem . . . is inescapably connected with
the substantive rights of the parties in any given type
of suit, rather than . . . `merely' an `administrative'
problem-).  The reverse-Erie metaphor, while perhaps of
use in other contexts, see Offshore Logistics, Inc. v.
Tallentire, 477 U. S. 207, 222-223 (1986), is not a sure
guide for determining when a specific state law has
displaced an essential feature of the general maritime
law.  See Exxon Corp. v. Chick Kam Choo, 817 F. 2d
307, 319 (CA5 1987) (-drawing conclusions from meta-
phors is dangerous-).  Procedural or substantive, the
forum non conveniens defense promotes comity and
trade.  The States are not free to undermine these goals.
  It is true that in Missouri ex rel. Southern R. Co. v.
Mayfield, 340 U. S. 1 (1950), we held the state courts
free to ignore forum non conveniens in FELA cases.  But
we did not consider the maritime context.  Unlike FELA,
a domestic statute controlling domestic markets, the
admiralty law is international in its concern.  A state
court adjudicating a FELA dispute interposes no obstacle
to our foreign relations.  And while the Jones Act in
turn makes FELA available to maritime claimants, that
Act says nothing about forum non conveniens.  See 46
U. S. C. App. 688.
  In any event, the Court's ruling extends well beyond
the Jones Act; it covers the whole spectrum of maritime
litigation.  Courts have recognized the forum non
conveniens defense in a broad range of admiralty
disputes: breach of marine insurance contract, Calavo
Growers of Cal. v. Generali Belgium, 632 F. 2d 963 (CA2
1980); collision, Ocean Shelf Trading, Inc. v. Flota
Mercante Grancolumbiana S.A., 638 F. Supp. 249 (SDNY
1986); products liability, Matson Navigation Co. v. Stal-
Laval Turbin AB, 609 F. Supp. 579 (ND Cal. 1985);
cargo loss, The Red Sea Ins. Co. v. S.S. Lucia Del Mar,
1983 A. M. C. 1630 (SDNY 1982), aff'd, 1983 A. M. C.
1631 (CA2 1983); and breach of contract for carriage,
Galban Lobo Trading Co. v. Canadian Leader Ltd., 1963
A. M. C. 988 (SDNY 1958), to name a few.  See Brief
for Maritime Law Association of the United States as
Amicus Curiae 12.  In all of these cases, federal district
courts will now hear forum non conveniens motions in
the shadow of state courts that refuse to consider it.
Knowing that upon dismissal a maritime plaintiff may
turn around and sue in one of these state courts, see
Chick Kam Choo v. Exxon Corp., 486 U. S. 140 (1988),
a federal court is now in a most difficult position.  May
it overrule a forum non conveniens motion it otherwise
would have granted, because the state forum is open?
See Ikospentakis v. Thalassic S. S. Agency, 915 F. 2d
176, 180 (CA5 1990) (reversing the grant of plaintiff's
voluntary dismissal motion, because the forum non
conveniens defense was not available to defendants in
the Louisiana court where plaintiff had also sued;
refusing -to insist that these foreign appellants become
guinea pigs in an effort to overturn Louisiana's errone-
ous rule-).  Since the Court now makes forum non
conveniens something of a derelict in maritime law,
perhaps it is unconcerned that federal courts may now
be required to alter their own forum non conveniens
determinations to accommodate the policy of the State
in which they sit.  Under federal maritime principles, I
should have thought that the required accommodation
was the other way around.  The Supreme Court of Texas
so understood the force of admiralty; it has ruled that
its state courts must entertain a forum non conveniens
objection despite a Texas statute mandating an open
forum.  Exxon Corp. v. Chick Kam Choo, No. D-1693
(Sup. Ct. Tex., Jan. 12, 1994).
  The Court does seem to leave open the possibility for
a different result if those who raise the forum non
conveniens objection are of foreign nationality.  The
Court is entitled, I suppose, to so confine its holding,
but no part in its reasoning gives hope for a different
result in a case involving foreign parties. The Court's
substance-procedure distinction takes no account of the
identity of the litigants, nor does the statement that
forum non conveniens remains -nothing more or less
than a supervening venue provision,- ante, at 10.  The
Court ought to face up to the consequences of its rule in
this regard.
  Though it may be doubtful that a forum non conveni-
ens objection will succeed when all parties are domestic,
that conclusion should ensue from a reasoned consider-
ation of all the relevant circumstances, including comity
and trade concerns.  See Anderson v. Great Lakes
Dredge & Dock Co., 411 Mich. 619, 309 N. W. 2d 539
(1981) (dismissing Jones Act claim brought by Florida
seaman against Delaware dredge owner for injuries
suffered in Florida); Vargas v. A. H. Bull S. S. Co., 44
N. J. Super. 536, 131 A. 2d 39 (1957) (dismissing Jones
Act claim brought by Puerto Rican residents against
New Jersey shipper for accidents that occurred in Puerto
Rico).  An Alaskan shipper may find a lawsuit in
Louisiana more burdensome than the same suit brought
in Canada.  It is a virtue, not a vice, that the doctrine
preserves discretion for courts to find forum non conveni-
ens in unusual but worthy cases.  At stake here is
whether the defense will be available at all, not whether
it has merit in this particular case.  Petitioner may not
have prevailed on its forum non conveniens motion, but
it should at least have a principled ruling on its objec-
tion.
  For these reasons, I would reverse the judgment.