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DOMINGO v. STATES MARINE

March 20, 1972;

Teresa B. DOMINGO, individually and as the widow of and on behalf of the next of kin of Eugenio Domingo, Deceased, Plaintiff,
v.
STATES MARINE LINES, Defendant. Jose Go TIAC, next of kin of Herminigilda Alvarez-Go, Deceased, et al., Plaintiffs, v. STATES MARINE LINES, INC., Defendant


Frederick van Pelt Bryan, District Judge.


The opinion of the court was delivered by: BRYAN

FREDERICK van PELT BRYAN, District Judge:

On October 23, 1966, the S.S. GOLDEN STATE collided with the M/V PIONEER LEYTE while the latter was leaving Manila Harbor, in the Republic of the Philippines. The GOLDEN STATE, some 7600 gross tons and 453 feet in length, was a United States flag vessel, owned and operated by States Marine Lines, a Delaware corporation, the defendant in these two actions. The PIONEER LEYTE was a Philippine vessel, some 779 gross tons and 226 feet in length, owned by Filipinas Pioneer Lines, a Philippine corporation.

 The PIONEER LEYTE was sunk in the collision, with a loss of approximately 100 lives. There were also some injured survivors. All of those lost or injured appear to have been citizens and residents of the Philippines. The GOLDEN STATE suffered only damage and no casualties. These two actions arise out of that collision.

 The plaintiff in 68 Civ. 1394, Teresa B. Domingo, a citizen and resident of the Philippines, sues on her own behalf and on behalf of the "next of kin" to recover for the death of her husband, who was killed in the collision. The companion action, 70 Civ. 4639, is brought by (1) the next of kin or legal representatives of 93 other such decedents; (2) individuals who are, apparently, survivors; and (3) the Vice Consul of the Republic of the Philippines, as representative of the estates of all those who were killed in the collision and the survivors who were injured. Jurisdiction is based on diversity of citizenship and "general maritime law".

 A number of other proceedings arising out of the collision have been instituted in various jurisdictions. An official Board of Maritime Inquiry in the Philippines conducted an investigation of the accident and found the GOLDEN STATE solely at fault.

 Actions have been brought in the Philippines against States Marine Lines to recover for the deaths of at least 19 of the persons killed in the collision. States Marine Lines has appeared in and is contesting those actions.

 An action commenced in the New York Supreme Court by the Philippines Consul General, as representative of the plaintiff Domingo and "all others similarly situated" against States Marine Lines was voluntarily discontinued, after the defendant had moved to dismiss. A second action, commenced by the plaintiff Domingo in the New York Supreme Court, was dismissed on the ground of forum non conveniens. An appeal is pending from that dismissal.

 Plaintiff Domingo has also instituted an action against States Marine Lines similar to her action in this District, in the Superior Court of Delaware, which is pending there. *fn1"

 In the two actions in this District, defendant States Marine has moved to dismiss on the ground of forum non conveniens. *fn2" On the record before me, it is plain that these motions should be granted.

 (1)

 The doctrine of forum non conveniens is not applicable unless there is at least one other forum in which the parties can litigate their claims on the merits.

 
In all cases in which the doctrine of forum non conveniens comes into play, it presupposes at least two forums in which the defendant is amenable to process; the doctrine furnishes criteria for choice between them. Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 506-507, 67 S. Ct. 839, 842, 91 L. Ed. 1055 (1947).

 See also North Branch Products, Inc. v. Fisher, 109 U.S. App. D.C. 182, 284 F.2d 611 (D.C. Cir. 1960), cert. denied, 365 U.S. 827, 81 S. Ct. 713, 5 L. Ed. 2d 705 (1961); Fiorenza v. United States Steel International, Ltd., 311 F. Supp. 117 (S.D.N.Y. 1969); Odita v. Elder Dempster Lines, Ltd., 286 F. Supp. 547 (S.D.N.Y. 1968).

 There are a number of suits to recover for deaths occurring in the collision pending against States Marine in the Philippine Courts. It appears, without contradiction, that States Marine "has appeared in and answered such suits, and has not and cannot, under Philippine law, contest the jurisdiction of the Philippine courts." It is uncontroverted that States Marine Lines has an agent in the Philippines, International Harvester MacLeod, duly ...


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