500. Deduction for income taxes

Deduction of taxes payable on estimated future earnings from gross income, in determination of damages for wrongful death in action under 46 USCS Appx § 688, was error under record showing that estimated annual earnings of decedents did not exceed $ 11,500. Petition of Marina Mercante Nicaraguense, S.A. (1966, CA2 NY) 364 F2d 118, 3 ALR Fed 187, cert den 385 US 1005, 17 L Ed 2d 544, 87 S Ct 710, reh den 386 US 929, 17 L Ed 2d 803, 87 S Ct 851.

No deduction for income taxes should be made where annual estimated earnings are not above reach of middle income scale. Petition of M/V Elaine Jones (1973, CA5 Miss) 480 F2d 11, amd on other grounds (CA5 Miss) 513 F2d 911, cert den 423 US 840, 46 L Ed 2d 60, 96 S Ct 71 and (ovrld on other grounds Culver v Slater Boat Co. (CA5 La) 688 F2d 280, op withdrawn, in part (CA5 La) 722 F2d 114, cert den 467 US 1252, 82 L Ed 2d 842, 104 S Ct 3537 and cert den (US) 83 L Ed 2d 37, 105 S Ct 90).

In determining extent of loss from future earnings of decedents killed in helicopter crash at sea court stated that no deduction for state and federal income taxes should be made where yearly estimated earnings are not clearly above reach of middle income scale. Higginbotham v Mobil Oil Corp. (1973, WD La) 360 F Supp 1140, affd in part and revd in part on other grounds (Ca5 La) 545 F2d 422 (disagreed with Smith v M/V Captain Fred (CA5 La) 546 F2d 119) as stated in Longmire v Sea Drilling Corp. (CA5 La) 610 F2d 1342, reh den (CA5 La) 615 F2d 919 and (disagreed with on other grounds Steckler v United States (CA10 Colo) 549 F2d 1372, 38 ALR Fed 188 (disagreed with Smith v United States (CA3 Pa) 587 F2d 1013)) and revd on other grounds 436 US 618, 56 L Ed 2d 581, 98 S Ct 2010, on remand (CA5 La) 578 F2d 565 and reh den 439 US 884, 58 L Ed 2d 200, 99 S Ct 232 and (ovrld on other grounds Culver v Slater Boat Co. (CA5 La) 688 F2d 280, op withdrawn, in part (CA5 La) 722 F2d 114, cert den 467 US 1252, 82 L Ed 2d 842, 104 S Ct 3537 and cert den (US) 83 L Ed 2d 37, 105 S Ct 90) and (disapproved on other grounds Jones & Laughlin Steel Corp. v Pfeifer, 462 US 523, 76 L Ed 2d 768, 103 S Ct 2541, on remand (CA3) 711 F2d 570).

501. Personal expenses of decedent

In action under 46 USCS Appx § 688, personal expenditures of decedent must be deducted from award. Gardner v National Bulk Carriers, Inc. (1963, ED Va) 221 F Supp 243, affd (CA4 Va) 333 F2d 676.

Before attempting to ascertain pecuniary loss to widow and children of deceased seaman, it is first necessary to allocate and deduct seaman's likely personal expenditures. Trexler v Tug Raven (1968, ED Va) 290 F Supp 429, revd on other grounds (CA4 Va) 419 F2d 536, cert den 398 US 938, 26 L Ed 2d 271, 90 S Ct 1843.

Damages under 46 USCS Appx § 688 reflecting decedent's lost wages must be adjusted to reflect amount decedent would have spent on himself and as his part of household expenses. Hebert v Otto Candies, Inc. (1975, ED La) 402 F Supp 503.

502. Actuarial tables

In computing damages due disabled seaman under Jones Act (46 USCS Appx § 688), District Court erred in basing award on work-life expectancy of 30.8 years, presumably because seaman would reach age 65 at that time, where experts in action testified that seaman had work-life expectancy of 25.8 years, based on rates compiled by Department of Labor; rates compiled by Department are not conclusive, but such rates should be followed absent evidence that particular person, by virtue of health, occupation, or other factors, is likely to live and work longer, or shorter period than average person. Madore v Ingram Tank Ships, Inc. (1984, CA5 Tex) 732 F2d 475.

In action brought under 46 USCS Appx § 688, mortality tables used in computing damages are intended as guide; to get value of reasonably to be expected contribution, earning power of money must be considered amount which, if capitalized at reasonable rate of interest, would yield annually same income person injured might have expected from deceased. Poindexter v Groves (1951, DC NY) 103 F Supp 657, affd (CA2 NY) 197 F2d 915.

Mortality and annuity tables are merely guides to assist jury in reaching verdict and do not furnish rules which jury must necessarily follow; amount to be awarded for future loss of pecuniary benefits is not to be arrived at by mere ascertainment of monthly payments and life expectancy, but present value of aggregate future payments must be ascertained and for this purpose annuity figures are utilized showing different interest calculations upon which such present value is ascertained. Holliday v Pacific Atlantic S.S. Co. (1953, DC Del) 117 F Supp 729, affd (CA3 Del) 212 F2d 206.

In action brought under 46 USCS Appx § 688, mortality and annuity tables may be considered, but are not fixed rules in computation of damages. Petition of Southern S.S. Co. (1955, DC Del) 135 F Supp 358.

503. Effect of inflation

Taking inflationary trends in economy into account in computing future lost earnings is approved. Johnson v Penrod Drilling Co. (1972, CA5 Tex) 469 F2d 897, 16 FR Serv 2d 766, on reh (CA5 Tex) 510 F2d 234, cert den 423 US 839, 46 L Ed 2d 58, 96 S Ct 68, 96 S Ct 69 Culver v Slater Boat Co. (CA5 La) 722 F2d 114, cert den 467 US 1252, 82 L Ed 2d 842, 104 S Ct 3537 and cert den (US) 83 L Ed 2d 37, 105 S Ct 90.

In action under 46 USCS Appx § 688, court may include in damage award adjustment of damage computation by anticipated annual increase in cost of living. Petition of M/V Elaine Jones (1973, CA5 Miss) 480 F2d 11, amd on other grounds (CA5 Miss) 513 F2d 911, cert den 423 US 840, 46 L Ed 2d 60, 96 S Ct 71 and (ovrld on other grounds Culver v Slater Boat Co. (CA5 La) 688 F2d 280, op withdrawn, in part (CA5 La) 722 F2d 114, cert den 467 US 1252, 82 L Ed 2d 842, 104 S Ct 3537 and cert den (US) 83 L Ed 2d 37, 105 S Ct 90).

It is not error for trial court to refuse to instruct as to inflation or present value. Haupt v Atwood Oceanics, Inc. (1982, CA5 Tex) 681 F2d 1058, CCH Prod Liab Rep P 9370, 10 Fed Rules Evid Serv 1643, reh den (CA5 Tex) 688 F2d 840 and reh den (CA5 Tex) 688 F2d 840.

504. --Discount of award

In action by injured seaman under 46 USCS Appx § 688, in which it was established that injuries were caused by employer's breach of duty to furnish seaman with reasonably safe workplace, District Court erred in applying Alaska Rule in calculating damages, rather than below-market discount method, and by allowing parties opportunity to introduce evidence of wage increases seaman would have received as result of factors other than inflation. Ober v Penrod Drilling Co. (1984, CA5 La) 726 F2d 1035.

In computing damages due disabled seaman under Jones Act (46 USCS Appx § 688), District Court erred in applying discount rate of 6.56 percent based on 21 year average of rates paid on United States Treasury bills, rather than on market rates available at time of judgment. Madore v Ingram Tank Ships, Inc. (1984, CA5 Tex) 732 F2d 475.

Jury awards made in action under 46 USCS Appx § 688 are not to be discounted to present values. Ivy v Security Barge Lines, Inc. (1976, DC Miss) 424 F Supp 1154, revd on other grounds (CA5 Miss) 585 F2d 732, on reh (CA5 Miss) 606 F2d 524, cert den 446 US 956, 64 L Ed 2d 815, 100 S Ct 2927, reh den 448 US 912, 65 L Ed 2d 1173, 101 S Ct 27 and on remand (ND Miss) 89 FRD 322.

Survivor's future pecuniary loss must be discounted to present value for purposes of present payment by employing appropriate interest rate prevailing at time and place of trial. Thompson v Offshore Co. (1977, SD Tex) 440 F Supp 752 (disapproved on other grounds Culver v Slater Boat Co. (CA5 La) 688 F2d 280, op withdrawn, in part (CA5 La) 722 F2d 114, cert den 467 US 1252, 82 L Ed 2d 842, 104 S Ct 3537 and cert den (US) 83 L Ed 2d 37, 105 S Ct 90).

505. Distribution of award

Damages to be awarded for death of seaman in action brought under 46 USCS Appx § 688 need not be apportioned. Otis v State (1944, Ct Cl) 47 NYS2d 755.

It is not necessary for jury to apportion verdict between widow and child in action under 46 USCS Appx § 688, since better practice is to instruct jury to bring in verdict in single lump sum, leaving distribution or administration of fund for appropriate state court. Tompkins v Pilots Asso. for Bay & River Delaware (1940, DC Pa) 32 F Supp 439, 1940 AMC 716.

In action under 46 USCS Appx § 688, pecuniary loss is accepted basis for recovery, and period that such loss will be sustained must be factor to receive consideration, and apportionment among several children of decedent should be made depending upon their different ages and whether they are actually being supported by spouse. Petition of Southern S.S. Co. (1955, DC Del) 135 F Supp 358.

Widow's recovery in action brought for recovery of damages resulting from death of husband under 46 USCS Appx § 688, is limited to amount her husband might reasonably have been expected to contribute to her had he lived; where decedent is survived by widow but not by children, widow's recovery should be limited to 50 percent of decedent's lost earnings. Mpiliris v Hellenic Lines, Ltd. (1969, DC Tex) 323 F Supp 865, affd (CA5 Tex) 440 F2d 1163.

Distribution of recovery for death of stevedore is governed by 46 USCS Appx § 688 and not by state law. Re De Martino's Estate (1932) 142 Misc 431, 254 NYS 862.

Recovery for death is to be distributed among injured parties in proportion to their loss, and death of injured party before fixing of damages does not defeat recovery. Re Uravic's Estate (1932) 142 Misc 775, 255 NYS 638.

State court has jurisdiction under 46 USCS Appx § 688 to determine apportionment among dependents of seaman. Re Nelson (1938) 168 Misc 161, 5 NYS2d 398, 1938 AMC 1068.

Distribution of award under 46 USCS Appx § 688 is governed by federal law and not state law; statute applicable is Federal Employers' Liability Act (45 USCS § § 51 et seq.) incorporated by reference in 46 USCS Appx § 688. Re Cooperman's Estate (1955) 208 Misc 234, 143 NYS2d 196.

Seaman's second marriage being illegal, having taken place less than one year after divorce decree, court apportioned damages for his death at sea between children of his first and second marriages. Re Tufts' Estate (1938) 228 Wis 221, 280 NW 309.

506. Miscellaneous

Measure of damages is compensation for deprivation of reasonable expectation of pecuniary benefits that would have resulted from continued life of deceased, and in estimating, earning power of money must be considered and amount determined which, capitalized at reasonable rate of interest, would yield annually same income injured person might have expected from deceased. Sabine Towing Co. v Brennan (1936, CA5 Tex) 85 F2d 478, cert den 299 US 599, 81 L Ed 441, 57 S Ct 191, reh den 299 US 624, 81 L Ed 459, 57 S Ct 234.

District Court committed reversible error when it admitted into evidence, over defendant's objections, slide-rule type device called "Future Damage Calculator" and took notice of plaintiff's life expectancy as calculated by device, where no foundation was laid for exhibit and exhibit was hearsay. Crane v Crest Tankers (1995, CA8 Mo) 47 F3d 292, 41 Fed Rules Evid Serv 351.

Though local law prohibited assignment of claim for personal injuries, assignment of proceeds of judgment received as result of action brought under 46 USCS Appx § 688 was valid. Sperling v McCarthy (1956, DC NY) 142 F Supp 780.

In claim under 46 USCS Appx § 688 prosecuted for benefit of widow, of decedent seaman, recovery is based upon and limited by pecuniary loss sustained by spouse; sums paid to widow under liability insurance policy taken out by shipowner and on which he paid all premiums must be deducted from award. Petition of Gulf Oil Co. (1963, DC RI) 221 F Supp 1000.

VII. PRACTICE AND PROCEDURE

A. State Court Actions

507. Generally

Actions under both 46 USCS Appx § 688 and 46 USCS Appx § § 761-767 may be brought in state courts. Bugden v Trawler Cambridge, Inc. (1946) 319 Mass 315, 65 NE2d 533.

Fact that cause of action is brought in state court under 46 USCS Appx § 688 does not change rules applying to actions based upon alleged negligence. Edmond v American-Hawaiian S.S. Co. (1946) 187 Misc 723, 65 NYS2d 433, affd 274 App Div 1035, 85 NYS2d 915.

508. Concurrent state court jurisdiction

State and federal courts have concurrent jurisdiction to enforce right of action established by 46 USCS Appx § 688. Engel v Davenport (1926) 271 US 33, 70 L Ed 813, 46 S Ct 410.

Provision in 46 USCS Appx § 688 that jurisdiction of actions for personal injuries shall be under court of district in which defendant employer resides, or in which his principal office is located, does not restrict enforcement of newly given rights to federal courts. Panama R. Co. v Vasquez (1926) 271 US 557, 70 L Ed 1085, 46 S Ct 596.

Suit under 46 USCS Appx § 688 may be filed in either federal or state courts, but construction of § 688 rests with federal court. Messel v Foundation Co. (1927) 274 US 427, 71 L Ed 1135, 47 S Ct 695.

Seaman's action under 46 USCS Appx § 688 to recover for injuries sustained in course of employment may be brought in state as well as federal courts. Lauritzen v Larsen (1953) 345 US 571, 97 L Ed 1254, 73 S Ct 921.

State and federal courts have concurrent jurisdiction over Jones Act (46 USCS Appx § 688), which authorizes seaman who suffers personal injury in course of employment to bring action for damages at law. American Dredging Co. v Miller (1994, US) 127 L Ed 2d 285, 114 S Ct 981, 94 CDOS 1288, 93 Daily Journal DAR 2371, 1994 AMC 913, 7 FLW Fed S 754.

When seaman sues under 46 USCS Appx § 688 in state court, concurrent jurisdiction is expressly granted to enforce this statutory addition to maritime law. Reynolds v Royal Mail Lines, Ltd. (1956, DC Cal) 147 F Supp 223, 1957 AMC 320, affd (CA9 Cal) 254 F2d 55, 1958 AMC 1668, cert den 358 US 818, 3 L Ed 2d 59, 79 S Ct 28.

State court possesses jurisdiction of claim under 46 USCS Appx § 688 by seaman injured in course of employment, jurisdiction of federal courts not being exclusive. Whalen v Twin City Barge & Gravel Co. (1935) 280 Ill App 596, cert den 297 US 714, 80 L Ed 1000, 56 S Ct 590.

State and federal courts have concurrent jurisdictions in actions to recover under 46 USCS Appx § 688 and under general maritime law, with federal principles of law applying. Keough v Cefalo (1953) 330 Mass 57, 110 NE2d 919.

State courts have concurrent jurisdiction with federal courts to try actions brought under 46 USCS Appx § 688 for injuries sustained, and for maintenance and cure under traditional maritime law. Richards v Dravo Corp. (1977) 249 Pa Super 47, 375 A2d 750.

509. Applicable substantive law

It is incumbent upon State courts in trying suit under 46 USCS Appx § 688 to proceed in such manner that all substantive rights of parties under controlling federal law are protected. Garrett v Moore-McCormack Co. (1942) 317 US 239, 87 L Ed 239, 63 S Ct 246.

Subject matter jurisdiction of state courts to determine 46 USCS Appx § 688 cases is founded on "savings to suitors" clause of 28 USCS § 1333. De Court v Beckman Instruments, Inc. (1973, 4th Dist) 32 Cal App 3d 628, 108 Cal Rptr 109.

Substantive law as developed in federal cases is controlling of cases under 46 USCS Appx § 688 filed in state courts. De Court v Beckman Instruments, Inc. (1973, 4th Dist) 32 Cal App 3d 628, 108 Cal Rptr 109.

510. Applicable rules of procedure

So far as procedure is concerned, all cases based upon 46 USCS Appx § 688 which are filed in state courts should be considered as though cause of action arose under statute of state, since nothing in 46 USCS Appx § 688 conflicts with state law of procedure. Macomber v De Bardeleben Coal Co. (1941, La App, Orleans) 4 So 2d 483, revd on other grounds 200 La 633, 8 So 2d 624, cert den 317 US 661, 87 L Ed 532, 63 S Ct 61.

In 46 USCS Appx § 688 case tried in state court, procedural matters are governed by state law. Continental Oil Co. v Lindley (1964, Tex Civ App Houston (1st Dist)) 382 SW2d 296, writ ref n r e.

46 USCS Appx § 688 prescribes substantive rights of parties in cases brought under 46 USCS Appx § 688, but when such cases are filed in state courts, they are generally to be tried in accordance with state's own rules of civil procedure. Union Oil Co. v Richard (1975, Tex Civ App Beaumont) 536 SW2d 955.

511. Sufficiency of contacts with state

Seaman injured from fall when valve handwheel he was holding unexpectedly came loose properly sued vessel owner under 46 USC Appx § 688, where vessel owner's only connection with Maryland was negotiation of agreement with Maryland based seafarer's union to supply vessel owner with unlicensed seamen, because personal jurisdiction is proper under Maryland long-arm statute as vessel owner contracted for services within state and developed sufficient relationship with Maryland for purposes of due process. Bass v Energy Transp. Corp. (1992, DC Md) 787 F Supp 530, 1992 AMC 2325.

Seaman, resident of Florida, injured on board vessel owned and operated by defendant, New Jersey corporation, could not maintain action under 46 USCS Appx § 688 in New York Supreme Court. Mowat v United Fruit Co. (1942, Sup) 37 NYS2d 93, 1942 AMC 983.

In action under 46 USCS Appx § 688 for damages resulting from wrongful death of plaintiff's intestate who lost his life while employed on barge located at pier in Jersey City, New Jersey, New York Supreme Court could take jurisdiction. Hamilton v Berwind-White Coal Mining Co. (1945, Sup) 60 NYS2d 561.

In 46 USCS Appx § 688 action by nonresident seaman against foreign corporation for injuries received while on vessel of corporation, failure of corporation which had offices in New York, to show that it does not do business in that state warrants court to use its discretion to either accept or decline jurisdiction. Seeley v Waterman S. S. Corp. (1947, Sup) 73 NYS2d 80, revd on other grounds 274 App Div 934, 83 NYS2d 502.

New York court would refuse jurisdiction of action predicated in part upon provisions of 46 USCS Appx § 688 against New Jersey corporation for injuries sustained by plaintiff during course of his employment as seaman while at Boston, Massachusetts, no sufficient special circumstances to warrant retention of jurisdiction having been disclosed; general appearance of defendant in such action did not constitute waiver of its right to invoke court's discretion to refuse jurisdiction. Brandao v United Fruit Co. (1944) 183 Misc 683, 50 NYS2d 886.

512. Suits against United States

Seaman who sustained injury due to negligence and unseaworthiness of vessel owned by railroad corporation owned by United States, could bring action for damages under 46 USCS Appx § 688 in state court; and 28 USCS § § 1346, 1504, 2110, 2671 et seq. did not affect such right. Wagner v Panama R. Co. (1949) 299 NY 432, 87 NE2d 444.

Where seaman, injured on vessel owned by United States, sues under 46 USCS § 688 shipping company operating vessel as agent, as responsible for injury, without including United States as defendant, suit may be brought in state court for damages. Odgaard v Cosmopolitan Shipping Co. (1939) 171 Misc 244, 12 NYS2d 389, 1939 AMC 1038.

513. State boards and commissions

Federal District Court had jurisdiction under 46 USCS Appx § 688 of libel by seaman for personal injuries incurred while taking net from nearby warehouse to vessel on which he was employed as seaman, as against contention that state industrial accident commission had exclusive jurisdiction of compensation for his injuries. The Betsy Ross (1944, CA9 Cal) 145 F2d 688, 1944 AMC 1468.

Workmen's compensation acts of state may properly bestow exclusive jurisdiction upon state administrative tribunal to exclude jurisdiction which formerly rested in Federal District Courts; this applies to relief for claims otherwise cognizable under 46 USCS Appx § 688. Surgeon v Alaska Packers Ass'n (1939, DC Cal) 26 F Supp 241.

Since plaintiff was engaged in work purely local in nature, workmen's compensation laws of California applied and since by such law Industrial Accident Commission was given exclusive jurisdiction, federal court had no jurisdiction under 46 USCS Appx § 688. Surgeon v Alaska Packers Ass'n (1939, DC Cal) 26 F Supp 241, 1939 AMC 474.

Industrial Accident Commission is not court of state which may give remedies under either 46 USCS Appx § 688 or maritime law for maintenance and cure, its sole power is to apply workmen's compensation law. Occidental Indem. Co. v Industrial Acci. Com. (1944) 24 Cal 2d 310, 149 P2d 841.

State industrial accident commission is not state court which may give remedies for injured seaman under either 46 USCS Appx § 688 or maritime law for maintenance and cure. Occidental Indem. Co. v Industrial Acci. Com. (1944) 24 Cal 2d 310, 149 P2d 841.

In cases where injured seaman is performing seaman's duties on navigable water he can bring action for injuries under 46 USCS Appx § 688 and not under state workmen's compensation law. Valley Towing Co. v Allen (1959) 236 Miss 51, 109 So 2d 538.

B. Jurisdiction

1. In General

514. Generally

Provision of 46 USCS Appx § 688 that jurisdiction shall be under court of district in which defendant employer resides or in which his principal office is located, applies only to federal courts. Bainbridge v Merchants & Miners Transp. Co. (1932) 287 US 278, 77 L Ed 302, 53 S Ct 159.

Assertion that 46 USCS Appx § 688 affords libelant right of recovery for negligence of his employer is alone sufficient to empower District Court to assume jurisdiction over case and determine whether in fact 46 USCS Appx § 688 does provide claimed rights. Romero v International Terminal Operating Co. (1959) 358 US 354, 3 L Ed 2d 368, 79 S Ct 468, reh den 359 US 962, 3 L Ed 2d 769, 79 S Ct 795.

In wrongful death actions for death of workers killed while working for drilling ship operating in national waters of Trinidad, dismissal for lack of subject matter jurisdiction is improper, where court failed to first address whether plaintiffs' decedents were Jones Act seamen or whether defendants were Jones Act employers. Ali v Offshore Co. (1985, CA5 La) 753 F2d 1327.

District Court properly dismissed employer's declaratory judgment action in Jones Act case where there was pending state court action which would resolve all issues, action strongly suggests forum shopping by plaintiff, and where permitting declaratory judgment action would effectively deprive seaman of right to jury trial. Torch, Inc. v LeBlanc (1991, CA5 La) 947 F2d 193.

Shipowner, naval entity of foreign nation, did not impliedly waive sovereign immunity in Jones Act case by filing notice of removal; action was purely defensive to preserve its right of removal and to avoid possibility of default judgment. Rodriguez v Transnave Inc. (1993, CA5 Tex) 8 F3d 284.

Suit by general liability insurer of seaman's employer against seaman to collect worker's compensation paid to him by employer's other insurance carrier was not improper attempt to assert subrogation claim for compensation payments; seaman was being asked to make restitution of worker's compensation benefits to which he was not entitled and insurer was simply seeking disgorgement. Commercial Union Ins. Co. v McKinnon (1993, CA8 Mo) 10 F3d 1352.

Pleading stating that deceased was seaman injured in scope of employment in violation of Jones Act and was borrowed servant of defendants was sufficient to allege Jones Act and to trigger nonremovability of suit. Lackey v Atlantic Richfield Co. (1993, CA5 Tex) 983 F2d 620, reh, en banc, den (CA5) 1993 US App LEXIS 4580.

Although Jones Act does not focus on location of vessel at time of injury, Jones Act jurisdiction still requires relationship to navigable waters; thus, ship with no connection to navigable waters is not source of Jones Act jurisdiction. Weaver v Hollywood Casino-Aurora, Inc. (2001, CA7 Ill) 255 F3d 379.

46 USCS Appx § 688 action against foreign vessel whose alien owner is absent cannot be maintained. The Roseville (1935, DC Wash) 11 F Supp 150, 1935 AMC 896.

515. "Jurisdiction" defined

"Jurisdiction" as used in 46 USCS Appx § 688 refers solely to venue. Branic v Wheeling Steel Corp. (1945, CA3 Pa) 152 F2d 887, 1946 AMC 66, cert den 327 US 801, 90 L Ed 1026, 66 S Ct 902; Harmon v Boland (1950, ED NY) 90 F Supp 559; Bailiff v Storm Drilling Corp. (1972, ED Tex) 356 F Supp 309.

Although 46 USCS Appx § 688 uses term "jurisdiction," it may be construed as venue statute; it incorporates venue provision of 28 USCS § 1391(c). De Mateos v Texaco, Inc. (1977, CA3 Pa) 562 F2d 895, cert den 435 US 904, 55 L Ed 2d 494, 98 S Ct 1449.

With regard to 46 USCS Appx § 688 providing that "jurisdiction . . . shall be under court of district in which defendant employer resides or in which his principal office is located," term "jurisdiction" means venue. Barrineau v Sub Sea Int'l (1996, ED Tex) 940 F Supp 153.

516. Admiralty jurisdiction

Admiralty has no jurisdiction of proceeding by injured seaman for compensation under 46 USCS Appx § 688 which imposes personal liability for such injuries, but gives no lien upon vessel. Plamals v S. S. Pinar Del Rio (1928) 277 US 151, 72 L Ed 827, 48 S Ct 457 (ovrld on other grounds Mahnich v Southern S. S. Co. 321 US 96, 88 L Ed 561, 64 S Ct 455).

Right of recovery under 46 USCS Appx § 688 for personal injuries is given to seamen as such, and, as in case of maintenance and cure, admiralty jurisdiction over suit depends not on place where injury is inflicted but on nature of service and its relationship to operation of vessel plying in navigable waters. O'Donnell v Great Lakes Dredge & Dock Co. (1943) 318 US 36, 87 L Ed 596, 63 S Ct 488; Swanson v Marra Bros., Inc. (1946) 328 US 1, 90 L Ed 1045, 66 S Ct 869, 1946 AMC 715.

Courts of admiralty are traditionally sensitive to seamen's rights, and before turning plaintiffs asserting 46 USCS Appx § 688 claims out of court, will satisfy themselves that there are no special circumstances which will leave them without adequate remedy. The Falco (1927, CA2 NY) 20 F2d 362; Jullien v The Marseille (1963, ED La) 214 F Supp 770, 1963 AMC 890; Volkenburg v Nederland-Amerik. Stoomv. Maats (1963, DC Mass) 221 F Supp 925, 1964 AMC 53, affd (CA1 Mass) 336 F2d 480, 8 FR Serv 2d 34.13, Case 12.

Dismissal for lack of jurisdiction of plaintiff's common law claim is proper absent sufficient nexus with traditional maritime activities to sustain admiralty and maritime jurisdiction. Shows v Harber (1978, CA8 Ark) 575 F2d 1253, 25 FR Serv 2d 601.

In action under 46 USCS Appx § 688 brought by merchant seaman, claiming negligence of shipowner and unseaworthiness of vessel, admiralty court has jurisdiction to entertain counterclaim, which is in nature of set-off, which shipowner seeks to interpose, looking for its recovery of maintenance and cure which it claims was procured by fraud; in interest of judicial economy where same issues are involved and plaintiff has demanded jury, issues raised in counterclaims may be determined by jury. Bergeria v Marine Carriers, Inc. (1972, ED Pa) 341 F Supp 1153, 16 FR Serv 2d 1268.

Jones Act (46 USCS Appx § 688) claim by seaman is within admiralty jurisdiction, whether injury occurs on vessel or on land. Koesler v Harvey Applicators, Inc. (1976, ED La) 416 F Supp 872.

Requirement that Jones Act claimant be seaman to recover benefits is jurisdictional; only one so situated can show maritime nexus necessary to invoke admiralty jurisdiction of federal courts. Hines v Saylor Marine Corp. (1985, SD Ga) 615 F Supp 33.

District Court did not have admiralty jurisdiction over suit by vessel owner to limit its liability for injuries suffered by crew members in accident in owner's vehicle on way home 45 minutes after they had debarked, even if crew members might have been able to bring claim against owner under 46 USCS Appx § 688, absent showing that accident was related to any particular activity aboard ship. In re Luhr Bros. (2000, ED Mo) 100 F Supp 2d 1156.

517. --Proceedings in admiralty or at law

Jones Act (46 USCS Appx § 688) affords injured seaman choice between suit in admiralty without jury and suit on civil side of docket with jury. Texas Menhaden Co. v Palermo (1964, CA5 Tex) 329 F2d 579.

Seaman having Jones Act (46 USCS Appx § 688) claim may elect remedy of suit in admiralty or civil action at law. Doucet v Wheless Drilling Co. (1972, CA5 La) 467 F2d 336, 16 FR Serv 2d 971.

Jones Act (46 USCS Appx § 688) does not withdraw injuries to seamen from reach and operation of maritime law, but, on contrary, it brings into that law new rules drawn from another system and extends to injured seamen right to invoke relief accorded by new rules; its effect is to enable seamen to maintain action for damages at law for personal injuries which formerly were within exclusive jurisdiction of maritime courts. Rowley v Sierra S.S. Co. (1942, DC Ohio) 48 F Supp 193.

Despite remedies provided by 46 USCS Appx § 688, jurisdiction in admiralty is quite separate and apart from jurisdiction at law, and admiralty is still separate field of law and has its own rules, methods, and procedure. Rowley v Sierra S. S. Co. (1942, DC Ohio) 48 F Supp 193, 1943 AMC 1025.

When plaintiff longshoreman brought action under 46 USCS Appx § 688 against several defendants, none of whom was his employer, United States District Court did not have jurisdiction on civil side, but would have had jurisdiction on admiralty side, under 46 USCS Appx § 741 et seq. Dell v American Export Lines, Inc. (1956, DC NY) 142 F Supp 511, 1956 AMC 1567.

518. --In rem or in personam proceedings

Suit under 46 USCS Appx § 688 cannot be brought in admiralty in rem; 46 USCS Appx § 688 does not undertake to impose liability on ship itself but against seaman's employer. Plamals v S. S. Pinar Del Rio (1928) 277 US 151, 72 L Ed 827, 48 S Ct 457 (ovrld on other grounds Mahnich v Southern S. S. Co. 321 US 96, 88 L Ed 561, 64 S Ct 455); Mahnich v Southern S. S. Co. (1944) 321 US 96, 88 L Ed 561, 64 S Ct 455; Lauritzen v Larsen (1953) 345 US 571, 97 L Ed 1254, 73 S Ct 921.

Maritime privilege or lien, though adhering to vessel, may prejudice creditors and purchasers without notice and is therefore stricti juris and cannot be extended by construction, analogy, or inference. The Josephine & Mary (1941, CA1 Mass) 120 F2d 459, 1941 AMC 1126.

Jones Act (46 USCS Appx § 688) modified prior maritime law of United States by giving to seamen injured through negligence right of action in personam against employer. Pate v Standard Dredging Corp. (1952, CA5 Tex) 193 F2d 498.

Rights under 46 USCS Appx § 688 may be asserted at law or in personam, in admiralty. Platt v Chesapeake & O. R. Co. (1948, DC Ohio) 82 F Supp 968.

Libel in rem to recover damages for death of seaman could not be maintained under 46 USCS Appx § 688. McLaughlin v Dredge Gloucester (1964, DC NJ) 230 F Supp 623, 1964 AMC 2123.

46 USCS Appx § 688 cases may be brought in federal courts in personam, but not in rem. Valentine v Wiggins (1965, ED NC) 242 F Supp 870.

Action brought under 46 USCS Appx § 688 to recover damages for injuries allegedly sustained in port of New York by citizen of Barbados who was seaman on vessel owned by British corporation, was dismissed as against vessel where nothing in record indicated that plaintiff was proceeding in rem or quasi in rem. Hazell v Booth S. S. Co. (1977, SD NY) 436 F Supp 561, adhered to (SD NY) 444 F Supp 85.

519. Actions against states

Eleventh Amendment bars federal jurisdiction over Jones Act claim by state employee against state for injuries sustained while state employee was assigned to vessel in course of duties as state agent. Smith v Louisiana, Dept. of Wildlife & Fisheries (1984, ED La) 586 F Supp 609.

Suit may not be brought against state in its own courts under 46 USCS Appx § 688 without its consent. Lyons v Texas A & M University (1976, Tex Civ App Houston (14th Dist)) 545 SW2d 56, writ ref n r e.

520. Choice of law

Similarity in function and purpose 46 USCS Appx § 688 and general maritime principles of compensation for personal injury admits of no rational differentiation for choice-of-law purposes. Romero v International Terminal Operating Co. (1959) 358 US 354, 3 L Ed 2d 368, 79 S Ct 468, reh den 359 US 962, 3 L Ed 2d 769, 79 S Ct 795.

Choice of law analysis for suits brought under 46 USCS Appx § 688 and those brought under general maritime law of United States is same. Vaz Borralho v Keydrill Co. (1983, CA5 Tex) 696 F2d 379, reh den (CA5 Tex) 710 F2d 207 and (disagreed with Tallentire v Offshore Logistics, Inc. (CA5 La) 754 F2d 1274, revd on other grounds (US) 91 L Ed 2d 174, 106 S Ct 2485).

Test for determining whether federal maritime law or foreign law governs maritime tort is not mechanical one in which court simply counts relevant contacts; significance of each factor must be considered within particular contacts of claim and national interest served by application of United States law. Fogleman v ARAMCO (1991, CA5 Tex) 920 F2d 278.

Substantive general federal maritime law will govern Jones Act (46 USCS Appx § 688) wrongful death claim brought under District Court's diversity jurisdiction, as opposed to state wrongful death law, because federal principles of maritime law constitute intended uniform body of maritime law for nation which should be applied to maritime claims in all courts. Neal v McGinnis, Inc. (1989, ED Ky) 716 F Supp 996.

521. Parties and standing

In determining whether or not person is proper party plaintiff or defendant, 46 USCS Appx § 688 and maintenance and cure cases may be read interchangeably; where there is negligence, 46 USCS Appx § 688 supplements remedy of maintenance and cure and employer may be liable under 46 USCS Appx § 688 for negligent failure to provide employees maintenance and cure. Mahramas v American Export Isbrandtsen Lines, Inc. (1973, CA2 NY) 475 F2d 165.

Survivors of Brazilian seaman who died as result of injuries sustained on board submersible drilling rig, located off Brazilian coast, have no standing to assert that court's distinction between drilling rigs and seagoing vessels discriminates against owners of seagoing vessels. Vaz Borralho v Keydrill Co. (1983, CA5 Tex) 696 F2d 379, reh den (CA5 Tex) 710 F2d 207 and (disagreed with Tallentire v Offshore Logistics, Inc. (CA5 La) 754 F2d 1274, revd on other grounds (US) 91 L Ed 2d 174, 106 S Ct 2485).

Seaman who owned 10 percent of defendant shipowner corporation along with his family members who owned remaining 90 percent could sue corporation under Jones Act where he was not active or influential in affairs of corporation. Rufolo v Midwest Marine Contractor (1993, CA7 Ill) 6 F3d 448, vacated, remanded 511 US 1050, 128 L Ed 2d 337, 114 S Ct 1609 .

2. Bases of Jurisdiction

522. Sufficiency of contacts with jurisdiction

Contacts were insufficient to support personal jurisdiction in Louisiana where plaintiff deckhand alleged that defendant sold fuel in Louisiana and that he traveled to Louisiana once on boat operated by defendant. Dalton v R & W Marine, Inc. (1990, CA5 La) 897 F2d 1359.

Due to minimal contacts with United States, court lacked subject matter jurisdiction over suit for injury occurring outside United States waters brought by Honduran crew member of vessel registered in Cyprus by German corporation. Matute v Procoast Navigation, Ltd. (1991, CA3 NJ) 928 F2d 627, 18 FR Serv 3d 1510.

District Court lacked jurisdiction to hear plaintiffs claim under 46 USCS Appx § 688, because of insufficient contacts with jurisdiction despite defendant agent's role in collecting freight charges in New York and disbursing funds for expenses, defendant's listing in Manhattan telephone directory at agent's telephone number, and agent's listing in Journal of Commerce as defendant's general agent; above facts were insufficient to establish identity of interest between defendant and agent. Hazell v Booth S. S. Co. (1977, SD NY) 444 F Supp 85.

Personal jurisdiction under 46 USCS Appx § 688 is governed by due process minimum contacts test. Papaioannoiu v Hellenic Lines, Ltd. (1983, ED Pa) 569 F Supp 724.

Complaint by boat captain is dismissed for lack of personal jurisdiction in action against foreign owner/operator corporations arising out of injury sustained while boat was in Panamanian waters, where contacts in forum state were sparse but captain contended that minimum contacts should be measured against United States rather than forum state under aggregate contacts theory, because measurement of minimum contacts with forum state only is emerging trend, particularly in maritime cases, and contacts were insufficient to make prima facie case that foreign corporations were amenable to service and subject to personal jurisdiction under laws and rules of forum state; federal courts are subject to same Fourteenth Amendment limitations as state courts when service is made under Rules 4(d)(3, 7), and 4(e). King v McAllister Bros., Inc. (1987, SD Ala) 659 F Supp 39.

Action is dismissed under 46 USCS Appx § 688, where Greek plaintiffs are suing mostly Greek defendants concerning aid to crew of Greek flag vessel while in Nigeria, because Greece is more convenient forum. Damigos v Flanders Compania Naviera, S.A. (1989, SD NY) 716 F Supp 104.

523. Amount in controversy

Where adequate jurisdictional amounts are averred under 46 USCS Appx § 688, there can be no question of right to maintain action, regardless of whether or not there is diversity of citizenship. Mullen v Fitz Simons & Connell Dredge & Dock Co. (1948, CA7 Ill) 172 F2d 601, cert den 337 US 959, 93 L Ed 1758, 69 S Ct 1534.

Where plaintiff in action under 46 USCS Appx § 688 for damages elects to bring action at law, he must meet jurisdictional amount requirements of former 28 USCS § 41(1) (now 28 USCS § 1332). Rowley v Sierra S. S. Co. (1942, DC Ohio) 48 F Supp 193.

Under 46 USCS Appx § 688 seaman has benefit of all United States statutes modifying or extending common-law right or remedy in cases of personal injury to railway employees, which includes Federal Employers' Liability Act (45 USCS § § 51 et seq.) that takes jurisdiction under 28 USCS § 1337 and allegation of jurisdictional amount required by 28 USCS § 1331 is not required; therefore, federal District Court had jurisdiction in action under 46 USCS Appx § 688 even though complaint did not allege damages in excess of $ 10,000. Brown v Sinclair Refining Co. (1964, SD NY) 227 F Supp 714.

When action is brought in admiralty under Jones Act (46 USCS Appx § 688), jurisdictional amount is not required; this also applies to actions brought in suit at law. Richardson v St. Charles-St. John The Baptist Bridge & Ferry Authority (1967, ED La) 274 F Supp 764, 11 FR Serv 2d 110.

46 USCS Appx § 688 is act of Congress regulating commerce, and under 28 USCS § 1337 no jurisdictional amount is necessary. Ballard v Moore-McCormack Lines, Inc. (1968, SD NY) 285 F Supp 290.

524. Diversity of citizenship

Since 46 USCS Appx § 688 provided independent basis for federal jurisdiction against nondiverse respondent, dismissal of claims in same action against respondents of diverse citizenship from seaman was erroneous. Romero v International Terminal Operating Co. (1959) 358 US 354, 3 L Ed 2d 368, 79 S Ct 468, reh den 359 US 962, 3 L Ed 2d 769, 79 S Ct 795.

Seaman may sue under 46 USCS Appx § 688 in district in which plaintiff resides and defendant has its principal office, requirement of diversity of citizenship having no application. Kuhlman v W. & A. Fletcher Co. (1927, CA3 NJ) 20 F2d 465.

Notwithstanding provision giving federal courts jurisdiction in common-law actions for maritime injuries only where parties are citizens of different states, action may be brought under 46 USCS Appx § 688 in district in which employer resides, or in which his principal office is located, though plaintiff is citizen of the same state. Johnson v Panama R. Co. (1921, DC NY) 277 F 859.

In action brought under 46 USCS Appx § 688, power of federal court to exercise jurisdiction over nonresident defendants in diversity case is governed by law of state in which federal court sits, with "federal law" applied only for determining whether state's assertion of jurisdiction violates constitutional guarantees; in cases arising under Constitution, laws, or treaties of United States, limitations placed upon courts of state do not apply to federal court sitting in that state, but if manner of service is not provided for under federal procedures, state procedures will be followed. Edwards v Gulf Mississippi Marine Corp. (1978, SD Tex) 449 F Supp 1363.

525. --Pendent, interpleaded, or joined parties

Federal District Court has no jurisdiction as between defendant and third person interpleaded as party primarily liable, both being residents of same state. Wilson v United American Lines, Inc. (1927, DC NY) 21 F2d 872.

Federal district court did not have jurisdiction over cause of action based solely upon general maritime law asserted against nondiversity defendant, by virtue of its joinder with cause of action under 46 USCS Appx § 688 properly asserted against other defendants. Maher v Newtown Creek Towing Co. (1961, SD NY) 190 F Supp 933, 1961 AMC 980.

46 USCS Appx § 688 does not lend itself to finding of congressional permission to assert state law claims against nondiverse defendants as pendent parties. Wood v Standard Products Co. (1978, ED Va) 456 F Supp 1098.

526. --Particular circumstances

In action by injured seaman under Jones Act (46 USCS Appx § 688), District Court in Kentucky has personal jurisdiction over Indiana corporation which owned barge upon which defendant was injured, despite fact that corporation's principal place of business was in West Virginia, where injury occurred in West Virginia waters when seaman tried to pull "barge wire" aboard barge with assistance of other seaman. Handley v Indiana & Michigan Electric Co. (1984, CA6 Ky) 732 F2d 1265.

In 46 USCS Appx § 688 action by alien seaman against alien shipowner for injuries sustained on board alien ship, diversity to give jurisdiction was lacking. Mproumeriotis v Seacrest Shipping Co. (1957, DC NY) 149 F Supp 265.

527. Federal question jurisdiction

Jones Act (46 USCS Appx § 688) conferred upon seaman right of action which he did not have under general maritime law and in adjudicating seaman's suit under § 688, District Court necessarily construes and applies § 688, it will thus be suit arising under law of United States and subject to federal question jurisdiction. Branic v Wheeling Steel Corp. (1945, CA3 Pa) 152 F2d 887, cert den 327 US 801, 90 L Ed 1026, 66 S Ct 902.

Where damages claimed in count under Jones Act (46 USCS Appx § 688) exceeded $ 3,000 (now $ 10,000), District Court had jurisdiction under 28 USCS § 1331 since it involved application of law of United States. Jordine v Walling (1950, CA3 Pa) 185 F2d 662.

District Court had subject matter jurisdiction for negligence claim brought by injured seaman under 46 USCS Appx § 688, where court looked behind facade of operation to actual operational contacts that ship and owner had with United States. Karvelis v Constellation Lines S.A. (1986, CA2 NY) 806 F2d 49.

Personal jurisdiction under 46 USCS Appx § 688 is governed by due process minimum contacts test while subject matter jurisdiction is determined by whether defendant is employer within meaning of § 688 and if defendant is found to be employer subject to § 688, court must then make inquiry as to choice of law applicable in case at bar; if United States law would not be applied to action, then § 688 does not apply and there exists no federal question jurisdiction; where important factors of accident situs and defendant's base of operations weigh in plaintiff's favor, court may find that plaintiff has carried his burden by showing preponderance of evidence that federal jurisdiction exists. Papaioannoiu v Hellenic Lines, Ltd. (1983, ED Pa) 569 F Supp 724.

Seaman seeking recovery for injuries sustained aboard barge shall either amend his complaint to invoke jurisdiction over 46 USCS Appx § 688 claim under 28 USCS § 1331 or withdraw his jury demand, but his demand for jury trial need not be stricken, because rule in Fitzgeraldprovides right to jury trial of general maritime law claims brought in admiralty when they are joined with § 688 claims brought on law side with election of trial by jury. Kathriner v Unisea, Inc. (1990, DC Alaska) 740 F Supp 768.

528. Pendent jurisdiction

Principles of pendent jurisdiction permit admiralty matter concerning maintenance and cure to be pleaded and adjudicated with related Jones Act (46 USCS Appx § 688) claim in action at law. Leith v Oil Transport Co. (1963, CA3 Pa) 321 F2d 591 (disagreed with Pure Oil Co. v Suarez (CA5 Fla) 346 F2d 890, affd 384 US 202, 16 L Ed 2d 474, 86 S Ct 1394).

District Court had subject matter jurisdiction over unseaworthiness claim pendent to its jurisdiction over claim under Jones Act (46 USCS Appx § 688). Petersen v Chesapeake & O. R. Co. (1986, CA6 Mich) 784 F2d 732.

Claims against one defendant under Jones Act and general maritime law can support pendent-party jurisdiction of state law claim against another, non-diverse defendant. Feigler v Tidex, Inc. (1987, CA5 La) 826 F2d 1435.

Claims under general maritime law and for maintenance and cure are regarded as pendent to Jones Act (46 USCS Appx § 688) claim. Bernardo v Bethlehem Steel Co. (1959, SD NY) 169 F Supp 914, 1 FR Serv 2d 878.

District Court does not have pendent jurisdiction over action against nondiverse defendant asserted under general maritime law in action properly brought by plaintiff under Jones Act (46 USCS Appx § 688) against other defendants. Maher v Newtown Creek Towing Co. (1961, SD NY) 190 F Supp 933.

Deckhand is granted motion under 28 USCS § 1447(c) to remand medical malpractice action against physician and hospital filed in state court, where complaint seek relief solely under state law, despite defendants' assertion that pendent-party jurisdiction could be exercised because of close relationship between medical malpractice action and deckhand's Jones Act action under 46 USCS Appx § 688 against transportation company in which transportation company impleaded hospital and physician alleging malpractice. Staffer v Staten Island Hospital (1988, ED NY) 686 F Supp 400.

529. Contacts with United States required for jurisdiction over foreign parties

Provisions of 46 USCS Appx § 688 are applicable to foreign events, foreign ships, and foreign seamen, only in accordance with usual doctrine and practices of maritime law; and that process has been duly served and necessary parties are before court of United States is not persuasive factor in determining whether application should be given to 46 USCS Appx § 688 since jurisdiction of maritime cases in all countries is so wide and nature of its subject matter so far-flung that there would be no justification for determining law of controversy simply on basis that local jurisdiction of parties is obtainable; basic criteria upon which to determine 46 USCS Appx § 688 jurisdiction as affected by nationality of seaman, vessel owner, or place of injury are: (1) place of wrongful act; (2) law of flag; (3) allegiance or domicil of injured person; (4) allegiance of defendant ship owner; (5) place of contract; (6) inaccessibility of foreign forum; and (7) law of forum. Lauritzen v Larsen (1953) 345 US 571, 97 L Ed 1254, 73 S Ct 921.

District Court acted within its sound discretion in declining to assume jurisdiction of in rem proceeding by Brazilian seaman against Swedish vessel for injury allegedly resulting from negligence and unseaworthiness, especially since Swedish consul stood ready to compensate seaman for injury. The Falco (1927, CA2 NY) 20 F2d 362, 1927 AMC 1474.

Circumstances sufficient to commit court to assume personal jurisdiction over shipowner may not be sufficient to obtain jurisdiction over Jones Act (46 USCS § 688) subject matter, thus, where shipowner maintains American agent and banking account, mere service of process does not perfect subject matter jurisdiction and Jones Act is not applicable. Dassigienis v Cosmos Carriers & Trading Corp. (1971, CA2 NY) 442 F2d 1016.

Jurisdiction is properly denied in claim under 46 USCS Appx § 688, where only significant contact was that place of contract was United States. Fitzgerald v Liberian S/T Chryssi P. Goulandris (1978, CA4 Va) 582 F2d 312.

In wrongful death action brought under Jones Act (46 USCS Appx § 688) and general maritime law, arising out of suffocation of decedent Greek national by carbon dioxide fire-extinguishing system while combating engine room fire of vessel which was Liberian owned and Panamanian registered, United States law is properly applied where accident occurs in American port, where vessel's entire business activity after purchase by Liberian interests has been in United States, and where decedent flies to United States to join vessel immediately after being hired works his entire service on vessel in United States port prior to accident. Fisher v The Agios Nicolaos V (1980, CA5 Tex) 628 F2d 308, 68 ALR Fed 342, reh den (CA5 Tex) 636 F2d 1107 and cert den 454 US 816, 70 L Ed 2d 84, 102 S Ct 92, reh den 454 US 1129, 71 L Ed 2d 117, 102 S Ct 982.

Contacts necessary to create American base of operations must be substantial; foreign owner must be engaged in extensive business operation in this country; important consideration for determining base of operations is location at which day-to-day operating activities are conducted; mere use of American husbanding agents or brokers who contract in American ports for use of foreign ship's services is insufficient to establish American base of operations; fact that foreign vessels have called at United States ports do not support finding of American base of operations; mere existence of temporary restraining order against foreign vessel and fact that vessel is plaintiff in another lawsuit has not relevance to establishment of American base of operations. Diaz v Humboldt (1984, CA5 La) 722 F2d 1216.

Although not expressly noted in 46 USCS Appx § 688, cause of action does not require presence of navigable body of water in order to conver federal jurisdiction. Oseredzuk v Warner Co. (1972, ED Pa) 354 F Supp 453, affd without op (CA3 Pa) 485 F2d 680, cert den 415 US 977, 39 L Ed 2d 873, 94 S Ct 1563.

In Jones Act (46 USCS Appx § 688) personal injury action, jurisdiction under Act does not exist where (1) accident occurs in Brazilian national waters, (2) accident occurs on vessel under Panamanian charter, (3) plaintiff is Brazilian citizen, (4) vessel is operated by Brazilian corporation, and (5) plaintiff executes employment contract in Brazil; fact that Brazilian employer and operator of vessel is wholly owned subsidiary of American corporation is insufficient relationship to warrant application of Jones Act jurisdiction where no facts exist to negate corporate separateness of Brazilian employer-subsidiary. Dos Santos v Reading & Bates Drilling Co. (1980, ED La) 495 F Supp 843.

Contacts with United States are insufficient to subject defendants to jurisdiction in Jones Act (46 USCS Appx § 688) action where plaintiff is citizen and resident of Venezuela who seeks recovery for injuries allegedly suffered while employed on barge owned by Venezuelean company, which is operated on waters of internal lake in Venezuela and which can not legally be operated outside of lake. Villalobos v Loffland Bros. Co. (1981, SD NY) 507 F Supp 904.

Seaman's claim brought pursuant to Jones Act (46 USCS Appx § 688) is dismissed for lack of subject matter jurisdiction, where seaman sustained injuries aboard vessel and vessel's ownership and operation, as well as certification, residence and base of operations of its owners are all foreign, because facts that Norwegian national plaintiff had taken up residence in Miami and signed on as First Assistant Engineer for vessel there are insufficient to supply Jones Act jurisdiction, particularly since employment contract, expressly made subject to Norwegian law, required that seaman's dispute with vessel owner be referred to Norwegian Foreign Service Station and "not be brought before foreign authorities." Tarasenko v Cardigan Shipping Co. (1987, SD NY) 671 F Supp 997.

Allegations by estate of deceased seaman are enough to avoid summary dismissal for lack of personal jurisdiction, where estate asserts that defendant is owner of foreign direct owner of ship seaman was injured on and that defendant controls large shipping operation from specific location in New York City, because estate provides sufficient grounds to allow limited discovery on issues of whether defendant was beneficial owner of ship and employer of defendant. Gazis v John S. Latsis, Inc. (1990, SD NY) 729 F Supp 979.

Foreign ship owners' motions to dismiss were granted in asbestos action brought by widow of seaman, where shipowners were not doing business in state at time suit was filed as required by state long-arm statute, since personal jurisdiction under Jones Act (46 USCS Appx § 688) depends on national contacts and on defendant being subject to jurisdiction of state where court is located. Penny v United Fruit Co. (1994, ED NY) 869 F Supp 122, 1995 AMC 652.

C. Venue

1. In General

530. Generally

Nothing in legislative history of venue provision of 46 USCS Appx § 688 indicates that its framers meant to use term "residence" as anything more than reference to more general doctrines of venue rules, which might alter in future. Pure Oil Co. v Suarez (1966) 384 US 202, 16 L Ed 2d 474, 86 S Ct 1394.

Although special venue provision of 46 USCS Appx § 688 reads in jurisdictional terms, it refers to venue only; venue provisions of § 688 should receive treatment consistent with liberal application of that legislation. Penrod Drilling Co. v Johnson (1969, CA5 Tex) 414 F2d 1217, cert den 396 US 1003, 24 L Ed 2d 495, 90 S Ct 552.

Venue requirement of 46 USCS Appx § 688 does not dictate only forum in which action may be tried; venue provisions merely confer upon defendant personal privilege which may be waived. Hill v Upper Mississippi Towing Corp. (1956, DC Minn) 141 F Supp 692.

531. Applicability to other actions

Venue provision of 46 USCS Appx § 688 is controlling when combined negligence and unseaworthiness claim is filed as civil action, but is not controlling when same subject matter is incorporated in libel in admiralty. Leith v Oil Transport Co. (1963, CA3 Pa) 321 F2d 591 (disagreed with Pure Oil Co. v Suarez (CA5 Fla) 346 F2d 890, affd 384 US 202, 16 L Ed 2d 474, 86 S Ct 1394).

Venue of common law action must be governed by 46 USCS Appx § 688. Wiss v Booth Fisheries Co. (1929, DC Or) 1929 AMC 1477.

When Jones Act (46 USCS Appx § 688) claim is combined with unseaworthiness allegation, and filed as civil action, venue provisions of § 688 are controlling. White v Waxler Towing Co. (1965, ND Ill) 250 F Supp 320.

532. --Suits in admiralty

Where seaman commences his action by libel in admiralty, but properly claims benefits of 46 USCS Appx § 688 in connection therewith, he is not required to follow venue provisions of 46 USCS Appx § 688. Brown v C. D. Mallory & Co. (1941, CA3 Pa) 122 F2d 98; Bennett v Standard Oil Co. (1940, DC Md) 33 F Supp 871; Evans v Nicholson Transit Co. (1944, DC Ohio) 58 F Supp 82; Paschal v North Atlantic & Gulf S. S. Co. (1950, DC NY) 95 F Supp 293; Blanco v Gulf Coast Transp., Inc. (1964, WD La) 235 F Supp 197.

Where suit is brought in admiralty, and benefit of 46 USCS Appx § 688 is claimed, it is not essential that suit be brought in district where defendant resides or has his principal place of business. McDaniel v Baker Sand & Gravel Co. (1928, DC Ala) 24 F2d 987; Frieda (1937, DC Pa) 1937 AMC 227.

In suit in admiralty by seaman for damages for personal injuries and for award of maintenance, venue rests in any District Court where process may be served, so long as libellant acts in good faith and continues to rest in such court within which process has been served, even though libellant intends to avail himself of additional admiralty rights bestowed upon seamen by 46 USCS Appx § 688. McKola v McCormick S. S. Co. (1938, DC Cal) 24 F Supp 378, 1938 AMC 904.

In admiralty suit, venue provision of 46 USCS Appx § 688 does not apply, and there is no right to jury trial. Crookham v Muick (1965, WD Pa) 246 F Supp 288, 1966 AMC 1522.

533. State court action

Venue provision of 46 USCS Appx § 688 is not applicable when suit is in state court. Engel v Davenport (1926) 271 US 33, 70 L Ed 813, 46 S Ct 410; Panama R. Co. v Vasquez (1926) 271 US 557, 70 L Ed 1085, 46 S Ct 596; Bainbridge v Merchants & Miners Transp. Co. (1932) 287 US 278, 77 L Ed 302, 53 S Ct 159.

In 46 USCS Appx § 688, Congress did not by words "the court of the district in which the employer defendant resides or in which his principal office is located" mean federal court district when action is brought in state court, and when action is brought in New York state courts, county in which defendant resides or has his principal office is district for purpose of determining where actions are to be brought. Villard v United States Shipping Board Emergency Fleet Corp. (1924, DC NY) 1 F2d 570.

Provision as to district of suit is not literally applicable where suit is in state court; even if word "district" is to be construed as "county" as applied to state courts, bringing of action in wrong county in New York is not ground for dismissal, but only for motion to change place of trial. Jacobsen v United States Shipping Board Emergency Fleet Corp. (1926) 128 Misc 138, 217 NYS 856.

534. Transfer of venue

Plaintiff will not be allowed to transfer venue in action under 46 USCS Appx § 688 solely by stating that he resides in other state and that all witnesses and records are located in other state and it is not alleged that he will be unduly inconvenienced by litigating case in original forum and furthermore case was 3 years old and at top of trial list in original forum. Berger v Grace Line, Inc. (1971, ED Pa) 343 F Supp 755, affd (CA3 Pa) 474 F2d 1339.

Venue was transferred from Eastern District of Pennsylvania to Eastern District of Nort Carolina in action under 46 USCS Appx § 688 by operation of 28 USCS § 1404(a) where medical witnesses resided and were subject to jurisdiction of court to which action was transferred and defendant needed transfer in order to join third party defendant. Kellum v United States Lines, Inc. (1973, ED Pa) 365 F Supp 1026.

Jones Act action brought in Pennsylvania would be transferred to New Jersey on motion of defendant where defendant would be able to implead third-party defendant in latter state and plaintiff had no important, legally cognizable stake in his choice of Pennsylvania federal court as forum for action. Biggers v Borden, Inc. (1979, ED Pa) 475 F Supp 333.

535. --Particular circumstances

Dismissal without prejudice in district court of crew member's libel in personam against shipowner and in rem against vessel, without prejudice to permit refiling in another court was not abuse of discretion. The S.S. Bethflor v Thomas (1966, CA5 Tex) 364 F2d 634, 1966 AMC 1897.

Sailor filed suit for damages under 46 USCS Appx § 688 to recover from defendant, Delaware corporation, whose principal office was in Missouri, but which also transacted business in Louisiana; plaintiff could have filed suit in Louisiana, since corporation can be sued anywhere it is doing business; hence defendant was entitled to move for transfer to Louisiana for convenience of parties, and in interest of justice. Bounds v Streckfus Steamers, Inc. (1950, DC Del) 89 F Supp 242.

In suit by seaman for damages against owner of vessel, case would be transferred from New York to California, where plaintiff was California resident defendant maintained its office in California, and all crew members lived on west coast. Ortiz v Union Oil Co. (1952, DC NY) 102 F Supp 492.

In motion to transfer under 28 USCS § 1404(a) applicable to action under 46 USCS Appx § 688, defendant has substantial burden of showing that he is entitled to transfer, on grounds of inconvenience, plaintiff's residence and fact that accident occurred in India and bar memberships of plaintiff's counsel are irrelevant to show that defendant will be inconvenienced by trial in original forum and remaining contentions of defendant are mere conclusions of expected inconvenience without showing in which way defendant will be inconvenienced or how substantially it or any witnesses will be inconvenienced. Rodriguez v American Export Lines, Inc. (1966, ED Pa) 253 F Supp 36.

46 USCS Appx § 688 action was transferred from Pittsburgh to Eastern District of Kentucky where accident occurred in Texas intercoastal canal, home port of vessel was in Kentucky, defendant was Kentucky corporation having its principal place of business in Kentucky, most of crew members who would be potential witnesses for defendant lived in or near Kentucky, and plaintiff was examined by physicians after his injury in Kentucky. Bishop v Ashland Oil, Inc. (1975, WD Pa) 394 F Supp 203.

Action under 46 USCS Appx § 688 brought by cadet-trainee at United States Merchant Marine Academy for injuries received while aboard defendant's vessel would not be transferred to Eastern District of Louisiana site of defendant's headquarters, where plaintiff has substantial connection with forum district and where defendant accepts cadets from academy on regular basis giving rise to reasonable expectations that suits by cadet-trainees will be instituted in this forum even though most witnesses are in Lousisiana. Drees v Lykes Bros. S.S. Co. (1980, SD NY) 500 F Supp 15.

536. Waiver of objection to venue

Defect as to venue may be waived and state court procedure governs as to waiver. Mannion v United States Shipping Bd. Emergency Fleet Corp. (1925, CA2 NY) 9 F2d 894.

Jurisdiction under 46 USCS Appx § 688 is exclusively in court of district of defendant's residence or principal office and cannot be conferred on court of another district by waiver. Barrington v Pacific S. S. Co. (1922, DC Or) 282 F 900.

In action under 46 USCS Appx § 688, venue requirements may be waived. Goetz v Interlake S.S. Co. (1931, DC NY) 47 F2d 753; Burris v Matson Nav. Co. (1940, DC NY) 37 F Supp 648, 1941 AMC 121.

In libel in admiralty by seaman to recover damages under 46 USCS Appx § 688, service of process on statutory resident agent of nonresident employer was good, appointment of statutory resident agent being equivalent to waiver of venue limitation of 46 USCS Appx § 688. Bennett v Standard Oil Co. (1940, DC Md) 33 F Supp 871, 1940 AMC 1141.

Provisions of 46 USCS Appx § 688 that "Jurisdiction in such actions shall be under the court of the district in which the defendant employer resides or in which his principal office is located" is venue provision which may be waived, and, under analogous law dealing with nonresident motorists, was waived by defendant's use of waterways of Illinois. Frase v Columbia Transp. Co. (1957, DC Ill) 158 F Supp 858, 1957 AMC 2438.

537. --Absence or form of appearance

Objection that action was not brought in district of defendant's residence or principal office goes to venue only and may be waived by general appearance. Panama R. Co. v Johnson (1924) 264 US 375, 68 L Ed 748, 44 S Ct 391, 1924 AMC 551.

Defense of improper venue was not waived by special appearance of defendant and posting of bond to dissolve attachment. Branic v Wheeling Steel Corp. (1945, CA3 Pa) 152 F2d 887, 1946 AMC 66, cert den 327 US 801, 90 L Ed 1026, 66 S Ct 902.

Since defendant did not appear generally or answer, he waives all defenses or objections to service of summons, or venue. Zwerling v New York & Cuba Mail S.S. Co. (1940, DC NY) 33 F Supp 721, 1941 AMC 155.

2. Bases of Venue

538. Generally

Where plaintiff commenced action in district where he lived, by virtue of diversity jurisdiction, basing his claim both on unseaworthiness and 46 USCS Appx § 688, complaint must be dismissed unless plaintiff abandons his cause of action under 46 USCS Appx § 688, where defendant neither resided nor had principal office in district where plaintiff sued. Branic v Wheeling Steel Corp. (1945, CA3 Pa) 152 F2d 887, cert den 327 US 801, 90 L Ed 1026, 66 S Ct 902.

46 USCS Appx § 688 action must be brought in district in which defendant employer resides or in which his principal office is located. Peters v Detroit v Cleveland Nav. Co. (1927, DC NY) 24 F2d 454; Bannon v Seaboard A. L. R. Co. (1930, DC Ga) 52 F2d 886, 1931 AMC 1263; Davenport v Sinclair Nav. Co. (1939, DC Pa) 30 F Supp 191; Smith v Nicholson Universal S. S. Co. (1941, DC NY) 42 F Supp 1001, 1942 AMC 466; Macomber v De Bardeleben Coal Co. (1941, La App, Orleans) 4 So 2d 483, 1942 AMC 41, revd on other grounds 200 La 633, 8 So 2d 624, cert den 317 US 661, 87 L Ed 532, 63 S Ct 61.

539. Partnerships and unincorporated associations

Alternative "principal office" venue provision of 46 USCS Appx § 688, although superfluous as regards corporate employers, continues to serve its original purpose when defendant employer is not corporation. Pure Oil Co. v Suarez (1966) 384 US 202, 16 L Ed 2d 474, 86 S Ct 1394.

Under venue provision of 46 USCS Appx § 688, action against partnership may be brought either in district where principal office of partnership is located, or in district where any partner resides. McCullough v Jannson (1923, CA9 Or) 292 F 377, error dismd 267 US 608, 69 L Ed 812, 45 S Ct 350.

For venue purposes there is no recognizable difference between unincorporated partnership and unincorporated association; multistate unincorporated business organization has residence for venue purposes in district in which it is doing business even though not location of its principal office or place where its owner-partners live. Penrod Drilling Co. v Johnson (1969, CA5 Tex) 414 F2d 1217, cert den 396 US 1003, 24 L Ed 2d 495, 90 S Ct 552.

Action under 46 USCS Appx § 688 against partnership employer brought in district where it had its principal place of business must be dismissed for want of proper venue, where such employer's "principal office" was shown to be in another district. Harmon v Boland (1950, DC NY) 90 F Supp 559.

540. Corporate defendants

Record showed that steamship company incorporated under laws of New York had office in New York, and therefore, court would assume, in absence of objection, that its principal office was located in New York. Carroll v United States (1943, CA2 NY) 133 F2d 690, 1943 AMC 339.

Federal court in New York was without jurisdiction of action under 46 USCS Appx § 688 by Louisiana citizen against New Jersey corporation with place of business in Massachusetts. Summerall v United Fruit Co. (1935, DC NY) 11 F Supp 963, 1935 AMC 1202, affd (CA2 NY) 80 F2d 1020, 1936 AMC 199, cert den 298 US 658, 80 L Ed 1384, 56 S Ct 680.

Federal District Court for northern district of California did not have jurisdiction of action brought against corporation located and doing business in southern district of that state. Spence v Lawrence-Phillips S. S. Co. (1935, DC Cal) 1935 AMC 215.

Complaint alleging that defendant was incorporated in state other than Pennsylvania and had its principal office in Texas was dismissed by district court in Pennsylvania for improper venue under 46 USCS Appx § 688. Hartley v Sioux City & New Orleans Barge Lines, Inc. (1965, WD Pa) 247 F Supp 1015, 1966 AMC 649, affd (CA3 Pa) 379 F2d 354, 10 FR Serv 2d 33, 1968 AMC 474.

541. --Applicability of 28 USCS § 1391

Definition of residence in general venue statute, 28 USCS § 1391(c), providing that corporation may be sued in any judicial district in which it is doing business, is applicable to seaman's action under 46 USCS Appx § 688 against corporation, notwithstanding venue provision thereof conferring jurisdiction upon court of district in which defendant employer resides or in which his principal office is located. Pure Oil Co. v Suarez (1966) 384 US 202, 16 L Ed 2d 474, 86 S Ct 1394.

Venue provisions of 28 USCS § 1391(c) apply to actions under 46 USCS Appx § 688. Pierce v Elk Towing Co. (1966, CA3 Pa) 364 F2d 504; De Mateos v Texaco, Inc. (1977, CA3 Pa) 562 F2d 895, cert den 435 US 904, 55 L Ed 2d 494, 98 S Ct 1449.

Venue is proper under 28 USCS § 1391(c), and consequently 46 USCS Appx § 688 in every district of state in which corporate defendant is incorporated. Davis v Hill Engineering, Inc. (1977, CA5 Tex) 549 F2d 314, reh den (CA5 Tex) 554 F2d 1065 and (ovrld on other grounds Culver v Slater Boat Co. (CA5 La) 688 F2d 280, op withdrawn, in part (CA5 La) 722 F2d 114, cert den 467 US 1252, 82 L Ed 2d 842, 104 S Ct 3537 and cert den (US) 83 L Ed 2d 37, 105 S Ct 90).

Defendant corporation in proceeding under 46 USCS Appx § 688 may be sued in any district where it is incorporated or is doing business, pursuant to provisions of 28 USCS § § 1391 et seq., and 1651 et seq. Leffellad v Detroit & Cleveland Nav. Co. (1926, DC NY) 16 F2d 1011; Bagner v Blidberg Rothchild Co. (1949, DC Pa) 84 F Supp 973; Mincy v Detroit & Cleveland Navigation Co. (1950, DC NY) 94 F Supp 456, 1950 AMC 1843; Phillips v Pope & Talbot, Inc. (1952, DC NY) 102 F Supp 51.

Provision of 28 USCS § 1391(c) expanding definition of residence of corporation to include districts in which it is doing business, is applicable to cases under 46 USCS Appx § 688 and authorizes bringing of action in court of district other than one in which corporate employer has its principal place of business. Garland v Alaska S. S. Co. (1961, DC Alaska) 194 F Supp 792, 1963 AMC 2616.

Since United States Supreme Court has held that definition of "residence" in 28 USCS § 1391(c) applies to venue provision in 46 USCS Appx § 688 permitting suit in "district in which the defendant employer resides" and since defendant was incorporated or licensed to do business in Texas, venue in Eastern District of Texas was proper as corporation incorporated or licensed to do business in state may be sued in each district of that state; defendant's contention that venue was proper only in Southern District of Texas, residence of defendant's agent for service of process, was mistaken. Bailiff v Storm Drilling Corp. (1972, ED Tex) 356 F Supp 309.

542. --"Principal office" defined

Maintenance of office merely for solicitation of business by officers or agents, orders to be executed at home office, did not amount to having principal office or regular and established place of business within district. Stein v Standard Oil Co. (1929, DC NY) 36 F2d 258, 1929 AMC 1524.

Principal office as applied to corporations means head office, place where principal officers generally transact business, and place to which reports are made and from which orders emanate. Ebanks v Grace Line, Inc. (1947, DC NY) 73 F Supp 749.

543. --Point in time at which corporation is doing business in district

Summons and complaint served on state official and copy mailed to defendant foreign corporation in compliance with state statute was valid service, and federal District Court had jurisdiction over foreign corporation in diversity action for damages under 46 USCS Appx § 688 even though corporation which had been doing business in state at time of injury was not doing business in state at time of commencement of action or at the time of such service of process. Bloomfield v Paramount Pictures Corp. (West Coast Studios) (1964, DC Hawaii) 228 F Supp 715, 1966 AMC 827.

Venue of action under 46 USCS Appx § 688 was properly laid under 46 USCS Appx § 688 and 45 USCS § 56 in district in which defendant was doing business at commencement of action. Blanco v Gulf Coast Transp. Inc. (1964, WD La) 235 F Supp 197, 1965 AMC 2406.

Jones Act (46 USCS Appx § 688) claim brought by father of drowned seaman will not be dismissed for improper venue, where it is unclear from fishing vessel lease extent to which defendants maintained control over or responsibility for leased vessel and its Texas operations, because it is impossible at this stage to determine whether defendants were "doing business" in coastal waters of Texas during 1998 red snapper season. Ghio v Jambon (1998, SD Tex) 23 F Supp 2d 724.

544. --Agents for corporation

Summons was served on manager of company, subagents for corporation, at its office in Providence; defendant moved to vacate and quash attempted service of summons and to dismiss case for want of jurisdiction because defendant was Washington corporation and not doing business in Rhode Island; motion was granted on testimony of manager, upon whom service was made, that he had no instructions with regard to vessel from corporation and that his company was acting as agent for vessel under appointment from another steamship line which was acting as agent of corporation. Andrade v American Mail Lines, Ltd. (1947, DC RI) 71 F Supp 201.

545. --Alien corporations

Jurisdictional provision of 46 USCS Appx § 688 must be liberally construed; consequently alien corporation with branch office at United States port may be sued there or any other place where it does business and service may be had on its authorized agent. Arthur v Compagnie Generale Transatlantique (1934, CA5 Canal Zone) 72 F2d 662, 1934 AMC 1199.

46 USCS Appx § 688 permits suit against corporation of another country at place where such corporation has its principal office in United States. Stewart v Pacific Steam Navigation Co. (1924, DC NY) 3 F2d 329, 1924 AMC 1272.

546. --Dissolved corporations

Venue provisions of 46 USCS Appx § 688 apply to dissolved corporation or one in process of dissolution. Antonana v Ore S.S. Corp. (1956, DC NY) 144 F Supp 486; Maitland v C.D. Mallory and Co. (1941, DC NY) 1941 AMC 885.

3. Forum Non Conveniens

547. Generally

While underlying principles of forum non conveniens doctrine are well established, each case must be decided on its peculiar factual setting and District Court's determination that defendant shipowner has substantial base of operations in United States is factual finding that should not be disturbed on review unless clearly erroneous. Szumlicz v Norwegian America Line, Inc. (1983, CA11 Fla) 698 F2d 1192.

Because forum non conveniens was defense solely available to foreign defendant in federal forum, and because they did not waive that defense by untimely assertion, District Court erred in permitting plaintiff to voluntarily dismiss federal claim without prejudice to bringing action in state that does not recognize that defense; this was so despite fact that state's position was clearly in conflict with federal law, because court will not make defendants guinea pigs in effort to overturn state law. Ikospentakis v Thalassic S.S. Agency (1990, CA5 La) 915 F2d 176.

Doctrine of forum non conveniens is inapplicable to Jones Act, which contains special provision mandating venue in United States courts. Creative Technology v Aztech Sys. PTE (1995, CA9 Cal) 61 F3d 696, 95 CDOS 5751, 95 Daily Journal DAR 9814, 35 USPQ2d 1590.

State rules on forum non conveniens govern in actions under 46 USCS Appx § 688. Norfolk & W. R. Co. v Beatty (1975, SD Ill) 400 F Supp 234, affd 423 US 1009, 46 L Ed 2d 381, 96 S Ct 439.

Doctrine of forum non conveniens raises issue of choice of law, thus, whether court maintains jurisdiction or dismisses case depends upon substantiality of contacts between injury and United States. Iriah v J. Ray McDermott & Co. (1979, DC Tex) 1979 AMC 1219.

Jones Act does not preclude dismissal of case under doctrine of forum non conveniens. Sherrill v Brinkerhoff Maritime Drilling (1985, ND Cal) 615 F Supp 1021.

548. Applicability of doctrine where Jones Act applies

Federal law does not pre-empt state law regarding doctrine of forum non conveniens in admiralty cases filed in state court under Jones Act (46 USCS Appx § 688), which authorizes seaman who suffers personal injury in course of employment to bring action for damages at law, and clause of 28 USCS § 1333(1) which provides for exclusive federal jurisdiction over admiralty cases while "saving to suitors" all other remedies to which they are otherwise entitled. American Dredging Co. v Miller (1994, US) 127 L Ed 2d 285, 114 S Ct 981, 94 CDOS 1288, 93 Daily Journal DAR 2371, 1994 AMC 913, 7 FLW Fed S 754.

District Court has no power to dismiss on grounds of forum non conveniens where 46 USCS Appx § 688 is applicable. Antypas v Cia. Maritima San Basilio, S. A. (1976, CA2 NY) 541 F2d 307, cert den 429 US 1098, 51 L Ed 2d 545, 97 S Ct 1116 and (disagreed with De Mateos v Texaco, Inc. (CA3 Pa) 562 F2d 895, cert den 435 US 904, 55 L Ed 2d 494, 98 S Ct 1449) and (disagreed with Chiazor v Transworld Drilling Co. (CA5 La) 648 F2d 1015, reh den (CA5 La) 659 F2d 1075 and cert den 455 US 1019, 72 L Ed 2d 136, 102 S Ct 1714) as stated in Vaz Borralho v Keydril Co. (CA5 Tex) 696 F2d 379, reh den (CA5 Tex) 710 F2d 207 and (disagreed with Tallentire v Offshore Logistics, Inc. (CA5 La) 754 F2d 1274, revd on other grounds (US) 91 L Ed 2d 174, 106 S Ct 2485) and (disagreed with Cruz v Maritime Co. of Philippines (CA2 NY) 702 F2d 47 (disagreed with Pereira v Utah Transport, Inc. (CA9 Cal) 764 F2d 686, cert dismd (US) 89 L Ed 2d 362, 106 S Ct 1253)).

Jones Act (46 USCS Appx § 688) does not prohibit District Court from dismissing case on ground of forum non conveniens; District Court no longer need first determine whether Jones Act applies before resolving forum non conveniens motion. Cruz v Maritime Co. of Philippines (1983, CA2 NY) 702 F2d 47 (disagreed with Pereira v Utah Transport, Inc. (CA9 Cal) 764 F2d 686, cert dismd (US) 89 L Ed 2d 362, 106 S Ct 1253).

If Jones Act applies to seamen's claim, dismissal for forum non conveniens is precluded. Zipfel v Halliburton Co. (1987, CA9 Cal) 820 F2d 1438.

When Jones Act applies to seaman's claim, claim may not be dismissed on ground of forum non conveniens. Zipfel v Halliburton Co. (1987, CA9 Cal) 832 F2d 1477.

Court has no power to dismiss case on grounds of forum non conveniens action where Jones Act (46 USCS Appx § 688) is otherwise found applicable, no matter how inconvenient forum may be to parties or to witnesses. Pavlou v Ocean Traders Marine Corp. (1962, SD NY) 211 F Supp 320.

549. Discretion of court

Dismissal of Jones Act suit does not rest in discretion of trial judge, since facts of case either warrant application of Act or they do not; once Act is found applicable, court's power to adjudicate must be exercised. Bartholomew v Universe Tankships, Inc. (1959, CA2 NY) 263 F2d 437, 1 FR Serv 2d 621, cert den 359 US 1000, 3 L Ed 2d 1030, 79 S Ct 1138 and (disagreed with on other grounds De Mateos v Texaco, Inc. (CA3 Pa) 562 F2d 895, cert den 435 US 904, 55 L Ed 2d 494, 98 S Ct 1449) and (disagreed with on other grounds Chiazor v Transworld Drilling Co. (CA5 La) 648 F2d 1015, reh den (CA5 La) 659 F2d 1075 and cert den 455 US 1019, 72 L Ed 2d 136, 102 S Ct 1714) as stated in Vaz Borralho v Keydril Co. (CA5 Tex) 696 F2d 379, reh den (CA5 Tex) 710 F2d 207 and (disagreed with Tallentire v Offshore Logistics, Inc. (CA5 La) 754 F2d 1274, revd on other grounds (US) 91 L Ed 2d 174, 106 S Ct 2485).

When court determines that foreign law applies to case, it should consider various private and public interest involved before dismissing case for forum non conveniens; this determination is committed to sound discretion of trial court and on appeal, court may reverse District Court's decision on motion to dismiss for forum non conveniens only if its action constitutes clear abuse of discretion. Diaz v Humboldt (1984, CA5 La) 722 F2d 1216.

District Court abused its discretion by deciding forum non conveniens motions in 3 consolidated personal injury admiralty suits without first making choice of law determination. McClelland Engineers, Inc. v Munusamy (1986, CA5 Tex) 784 F2d 1313.

District Court has no discretion under doctrine of forum non conveniens to dismiss or transfer 46 USCS § Appx 688 claim where American contacts are sufficient to warrant application of American law. Mattes v National Hellenic American Line, S. A. (1977, SD NY) 427 F Supp 619.

In action where plaintiff asserts that 46 USCS Appx § 688 and general maritime law of United States governs case, and where defendant asserts that law of foreign nation apply, if § 688 and general maritime law of United States apply, then court is without power to dismiss on grounds of forum non conveniens but if on other hand, foreign nation law applies, then court is required to exercise its discretion to determine whether or not matter should be dismissed and parties directed to litigate in different forum. Cruz v Maritime Co. of Philippines (1982, SD NY) 549 F Supp 285, affd (CA2 NY) 702 F2d 47 (disagreed with Pereira v Utah Transport, Inc. (CA9 Cal) 764 F2d 686, cert dismd (US) 89 L Ed 2d 362, 106 S Ct 1253).