person can only bring a products liability action if the product was being used by the person in his personal, as opposed to professional or occupational, capacity. Plaintiffs argue that because the decedents were 'on duty' when the accident occurred, their relatives and estates cannot maintain a products liability action. The evidence, however, is that the crewmembers had the night off duty and were on shore visiting several bars. Thus, they were not 'on duty' when the accident occurred. Plaintiffs concede that if they were not 'on duty' when the accident occurred, they can maintain a products liability action against Whaler. Moreover, two of the decedents were not crewmembers and were just hitching a ride on the tender. These people were using the product solely in their personal capacities.
The unavailability of strict products liability does not make the Greek courts an inadequate forum. In Piper, the Supreme Court stated that "although the relatives of the decedents may not be able to rely on a strict liability theory, and although their potential damages award may be smaller, there is no danger that they will be deprived of any remedy or treated unfairly." Piper, 454 U.S. at 255. The Supreme Court went on to say that unless the other nation affords a remedy "so clearly inadequate to be no remedy at all," substantial weight cannot be given to this consideration. Id. at 254. In this action, plaintiffs bring both negligence and a strict products liability causes of action against Whaler.
Even if the Court were to retain this suit, the choice of law analysis reveals that Greek or U.K. law should apply. The causes of action which may be brought are not dependent on the forum, but on the substantive law that applies. If Greek law were to apply, then plaintiffs could not maintain any cause of action in U.S. courts that they could not maintain in Greek courts. Thus, if Greek law does not allow certain plaintiffs to recover under products liability causes of action, they will be barred regardless of whether the suit proceeds in the U.S. or Greece. Moreover, if Greek law applies, this is a strong factor weighing in favor of a Greek forum. This Court has no knowledge of or experience in applying Greek law, whereas Greek courts are experts in Greek law.
Plaintiffs are also concerned about obtaining jurisdiction over Whaler and Captain Boos in Greek court. This concern will be alleviated by conditioning the dismissal of this suit on Boos and Whaler's submitting to jurisdiction in the Greek courts.
Plaintiffs' second objection to a Greek forum is that "defendants have demonstrated their lack of respect for the authority of the Greek courts and justice system." Once the 62,000,000 drachma bank guarantee had been lodged, the ship was released and sailed from Greek waters. Later, the Greek court ordered defendants to increase the bond by 60,000,000 drachmas, but defendants' Greek counsel allegedly refused to accept service of the supplemental arrest warrant because the ship was no longer in Greek waters. Plaintiffs argue that this cavalier disregard for the Greek courts is evidence that defendants will not abide by future orders of the Greek courts. This concern will be alleviated by conditioning dismissal of this action on the posting of whatever bond the Greek court deems appropriate. If the Greek court already has MML's money, it would not be possible for MML to ignore a judgment of the Greek court.
Plaintiffs' final objection to a Greek forum is that criminal proceedings for negligent homicide are pending against Captain Boos and Chief Engineer Ian MacNeil, the driver of the tender when it crashed. Both apparently fled Greece with the Maridome and have not appeared in Greek court to answer the charges against them. Plaintiffs contend that in order to avoid criminal prosecution, neither of these men will return to Greece. Thus, if this civil case were to go to trial in Greece, these men would only testify via deposition. Since Boos is a party to this action, the Court could condition its dismissal on his submitting to the jurisdiction of the Greek courts in a similar civil action. In Gazis v. John S. Latsis (USA) Inc., 729 F. Supp. 979, 989 (S.D.N.Y. 1990), the Court stated that Greece had a strong interest in "adjudicating the rights of Greek seamen," and noted that "Greece has already demonstrated its interest in this particular case by initiating criminal proceedings against the master, chief officer, and the boatswain of the LADY EMA."
For these reasons, Greece is an adequate alternative forum in which this suit could be prosecuted.
b) United Kingdom
Defendants also argue that the U.K., like Greece, would be an adequate alternative forum in which this suit could be prosecuted. Plaintiffs do not dispute that British law allows recovery for wrongful death and personal injuries. Rather, plaintiffs contend that U.K. courts lack jurisdiction to adjudicate claims brought by non-U.K. citizens. Two of the five decedents are not U.K. citizens, and the U.K. courts will only entertain their suits if the tortious act was committed in the U.K., if the damages from the tortious act were felt in the U.K., or if the defendant is located in the U.K. Plaintiffs further state that MML is incorporated in the Channel Islands (Jersey) which, although part of the U.K., would not subject MML to the jurisdiction of the U.K. courts. Defendants respond that British courts would not refuse to hear suits against a vessel of British registry which flies the British flag. Further, suit could be brought in the Channel Islands where MML is incorporated.
This potential difficulty could be overcome by the Court's conditioning dismissal of this action on the acceptance of jurisdiction over the suits brought by the estates and families of the Greek decedents by the U.K. courts. If the U.K. courts were to decline jurisdiction, then this action could return to this Court.
For this reason, the courts of the United Kingdom are also an adequate alternative forum in which this suit could be prosecuted.
4. Public Interests
Public interest factors address the burden the litigation would place upon the Court and members of the public if it were to proceed in the forum chosen by plaintiffs. "Public interest factors encompass court congestion, the local interest in resolving the controversy, and the preference for having a forum apply a law with which it is familiar." Lockman Foundation v. Evangelical Alliance Mission, 930 F.2d 764, 771 (9th Cir. 1991).
California and the United States have no interest in resolving this dispute. The accident took place in Greek waters, no U.S. citizens were injured, none of the witnesses on board the tender are U.S. citizens, the vessel flies the British flag, its owner is a U.K. corporation whose shares are held for the benefit of a Mexican citizen, all of the decedents received medical attention in Greek hospitals, and the Greek authorities conducted an investigation into the accident. Defendant Boos is a U.S. resident, but he has not lived in the U.S. in the past twenty years.
The choice of law analysis reveals that Greek or British law would apply to this dispute. This Court has no expertise in foreign law, while Greek and British courts are experts in their own law. The preference for having a forum apply a law with which it is familiar dictates that this suit should be dismissed in favor of proceedings in either Greece or the U.K.
Moreover, Greece has a strong interest in resolving this dispute because two of its citizens were killed in its coastal waters. The United Kingdom also has a strong interest in resolving this dispute because two of its citizens were killed and one was injured, the vessel responsible for their deaths flies the British flag, and the owner of the vessel is a U.K. corporation. Countries have a strong interest in protecting their citizens and in regulating their citizens so that they do not injure others. This demonstrates that the United States has no interest in resolving this dispute, while both the U.K. and Greece have strong interests.
Plaintiffs attempt to minimize these interests by arguing that although three of the injured or killed sailors were British, they lived aboard the vessel full-time, so the U.K. does not have a strong interest in their welfare. Similarly, the Greek decedents were dual citizens of Greece and Germany and resided much of the time in Germany, so plaintiffs contend that Greece does not have a strong interest in their welfare. These arguments are unpersuasive.
The Ninth Circuit has affirmed dismissals for forum non conveniens under similar circumstances. In Villar v. Crowley Maritime Corp, 782 F.2d 1478, 1483 (9th Cir. 1986), a Jones Act suit by family members of a Philippine sailor who drowned in Saudi Arabian waters while working on a Philippines-flagged ship owned by Americans was dismissed for forum non conveniens. The Court stated:
We also agree with the district court's conclusion that the Philippines has a powerful interest in deciding the controversy because of its strong contacts with both the decedent and the [vessel], and that American jurors and court personnel have little interest in this controversy. The district court concluded that the public interest factors point to a Philippine forum.
Id. Similarly, in Sigalas v. Lido Maritime, Inc., 776 F.2d 1512 (11th Cir. 1985), the court ruled that the Jones Act claim by the wife of a Greek sailor on a Greek-flagged ship owned by a Liberian corporation whose principal place of business was in Greece was properly dismissed for forum non conveniens. The Court stated that plaintiff "represents the archetypal foreign plaintiff bringing her foreign claim to American courts to secure relief more generous than she would get under the law of her homeland." Id. at 1520.
Boston Whaler cites the Supreme Court's seminal forum non conveniens decision of Piper Aircraft v. Reyno, 454 U.S. 235, 70 L. Ed. 2d 419, 102 S. Ct. 252 (1981), in support of its motion to dismiss for forum non conveniens. In Piper, a plane owned by a Scottish company crashed in Scotland, killing Scottish and English citizens. The Court explained that the benefits of retaining the action in the U.S. where the manufacturer of the airplane resides were insignificant compared to the enormous burden the foreign dispute would place on the U.S. court system. Piper, 454 U.S. at 260-61. "The American interest in this accident is simply not sufficient to justify the enormous commitment of judicial time and resources that would inevitably be required if the case were to be tried here." Id.
Finally, in Ioannides v. Marika Maritime Corp., 928 F. Supp. 374, 380 (S.D.N.Y. 1996), the Court stated:
There is a final public interest consideration that bears more than passing mention. This is a case brought on behalf of a Greek seaman who shipped aboard a Liberian vessel crewed by a Greek company which, wherever its ownership lay, was engaged exclusively in carrying cargos to and from non-U.S. ports. There are fora and remedies available to plaintiffs under the laws of their country of domicile. . . . There seems little justification for opening the courts of the United States -- which are paid for by U.S. taxpayers and whose juries are composed of U.S. citizens asked to drop their everyday activities to serve -- to claims in these circumstances, even if, as plaintiffs stoutly argue, the ultimate base of operations of the vessel in question was the United States.