The opinion of the court was delivered by: LEVAL
PIERRE N. LEVAL, U.S.D.J.
This is an action by a seaman to recover damages for personal injuries sustained while serving aboard a vessel owned and operated by the defendant. Defendant moves to dismiss on the ground of forum non conveniens. The motion is granted.
Plaintiff Nathaniel Cruz is a citizen, and on the date of the injury was a resident of the Philippines. At the time of his injury, he was a seaman on a Philippine vessel, passing through United States waters. He has lived in the United States since that date and now claims to be a resident of the United States, having applied for political asylum in this country. Defendant Maritime Company of the Philippines ("MCP") is a Philippine corporation, having its principal place of business in the Philippines. MCP is owned by shareholders all of whom are citizens and residents of the Philippines. All of MCP's directors and four of its five officers are citizens and residents of the Philippines. The fifth officer, a vice president and general manager, is a permanent resident of the Philippines but a citizen of the United States.
Plaintiff entered into an oral agreement with defendant in the Phillippines to serve as a seaman aboard the M.V. Zamboanga, a Philippine flag vessel owned and operated by MCP. The Zamboanga carried a crew of Philippine citizens and residents, all of whom were engaged by MCP in the Philippines.
In 1980, MCP owned seven vessels, including the Zamboanga, and operated thirteen other vessels pursuant to bareboat charters. MCP controlled the routing of all of its vessels from its office in the Philippines. In addition, MCP hired its crews, handled its vessels' accountings and paid most of its vessels' expenses from its office in the Philippines. MCP engaged a partially owned subsidiary, North American Maritime Agencies ("NAMA"), to act as its agent in the United States to assist it in soliciting American cargo and to act as a liaison with MCP's American customers. NAMA performs several functions for MCP, including arranging for U.S. stevedoring, collecting and accounting for freights payable in the United States, appointing husbanding agents, and paying routine expenses when payable in the United States. NAMA accounts to MCP at least every ten days for monies received by it on account of MCP freights and receives a percentage of MCP's United States freights as its agency fee. NAMA is an American agent for six shipping lines in addition to MCP and performs similar functions for each. A full time employee of MCP serves as MCP's "local representative in New York" (Def't's Reply Brief p. 6) and maintains an office in NAMA's suits of offices. MCP derives approximately 29% of its worldwide operating revenues from its United States operations.
On November 12, 1980, several members of the Zamboanga's crew were removing the cover from one of the ship's hatches. In the course of that operation, the cover struck plaintiff in the leg. At the time, the ship was moored in the port of Camden, New Jersey. Six crewmembers are known to have been witnesses to the accident. Plaintiff claims that Edward R. Aziz (an American employee of NAMA), Harry Finnegan (the port captain) and unidentified longshoremen were witnesses to the accident. Defendant claims that Aziz denies having witnesses the accident. No affidavits of such persons have been submitted attesting to any knowledge of the accident.
After the accident, plaintiff was taken by ambulance to a hospital in Camden, New Jersey, where he remained as an inpatient until January 1981. At that time, he was advised that he would soon be repatriated to the Philippines for further treatment, whereupon he signed himself out of the hospital. Plaintiff claims that he took this action because he had been told he would be returned to the Philippines by boat and didn't believe that he could survive such a trip. Defendant claims that it advised plaintiff that he would be returned to the Philippines by air. In any event, plaintiff later admitted himself to the Hospital for Joint Diseases and Orthopaedic Institute where he continued to receive medical attention. On May 7, 1981, his leg was amputated above the knee. Since that time, plaintiff has obtained a prosthesis and has continued to receive medical care. To date, he has incurred medical expenses in this country of at least $158,251.47.
Plaintiff asserts that the Jones Act, 46 U.S.C. § 688, and the general maritime law of the United States govern this case. Defendant asserts that the law of the Philippines applies. If the Jones Act and the general maritime law of the United States apply, then the court is without power to dismiss on grounds of forum non conveniens. Antypas v. Cia. Maritima San Basilio, S.A., 541 F.2d 307, 310 (2nd Cir. 1976). If on the other hand, Philippine law applies, then the court is required to exercise its discretion to determine whether or not the matter should be dismissed and the parties directed to litigate in a different forum. I conclude that Philippine law applies.
In Lauritzen v. Larsen, 345 U.S. 571, 73 S. Ct. 921, 97 L. Ed. 1254 (1953), the Supreme Court identified seven factors that bear on the choice of law in cases of maritime torts, namely the place of the wrongful act; the law of the ship's flag; the allegience or domicile of the injured seaman; the allegiance of the shipowner; the place where the contruct of employment was made; the inaccessability of a foreign forum; and the law of the forum. The Court noted in Hellenic Lines Limited v. Rhoditis, 398 U.S. 306, 308-09, 90 S. Ct. 1731, 1734, 26 L. Ed. 2d 252 (1970), that the Lauritzen list was not intended as exhaustive. "[T]he shipowner's base of operations is another factor of importance in determining whether the Jones Act is applicable; and there may be others." The Court also cautioned that the test is not a mechanical one and that the significance of each factor must be considered in light of the national interest served by the assertion of Jones Act jurisdiction. The significant factors in this case point to the application of Philippine law.
The fact that plaintiff was injured on American waters provides some support for his contention that American law should apply, but it should not be given great weight. "The test of location of the wrongful act or omission, however sufficient for torts ashore, is of limited application to shipboard torts, because of the varieties of legal ...