American Dredging Company v. Miller – Oral Argument – November 09, 1993

Media for American Dredging Company v. Miller

Audio Transcription for Opinion Announcement – February 23, 1994 in American Dredging Company v. Miller

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William H. Rehnquist:

We’ll hear argument next in Number 91-1950, American Dredging Company v. William Robert Miller.

Spectators are admonished not to talk until you leave the courtroom.

The Court remains in session.

Mr. Wagner.

Thomas J. Wagner:

Mr. Chief Justice, may it please the Court:

The question presented in this case is whether or not the doctrine of forum non conveniens, as that doctrine has been articulated in the admiralty courts, is applicable to maritime claims when filed in State court pursuant to the 28 U.S.C. section 1333.

American Dredging, the petitioner, asks that you answer that question in the affirmative for two strong reasons.

First, we respectfully submit that this doctrine is a fundamental and an important feature of the admiralty law which should be respected and applied uniformly by all courts in all situations, regardless of whether filed in State or Federal court, regardless of the citizenship, nationality, or residence of the parties.

Ruth Bader Ginsburg:

Wasn’t the first time that this Court enunciated that doctrine and recognized it was not in admiralty, it was in a diversity case… Gulf Oil?

Thomas J. Wagner:

Your Honor, I would suggest that the first time this Court officially recognized that doctrine was in the Belgenland case in 1885, where it recognized that the Court could dismiss a claim in dicta for the same reasons as forum non conveniens, although they did not articulate the Latin phrase, forum non conveniens.

Ruth Bader Ginsburg:

My concern is that you’re constantly associating this with admiralty, and yet as far as I know it was part of equity, and it was also… in Gulf Oil it was a straight law case for damages, so forum non conveniens seems to me across-the-board doctrine that applies in cases at law, equity, and in admiralty.

Thomas J. Wagner:

Your Honor, the first articulation of the doctrine using the term, forum non conveniens, did appear in a nonadmiralty case, but that case draws its roots, or has its roots exclusively in the admiralty.

In the older cases of 1804, where Chief Justice Story referred to the convenience of the parties as being able to be considered, and whether a court would retain jurisdiction in an admiralty salvage case.

In 1885, in a collision case, an admiralty collision case, the court recognized the discretion of the trial court in weighing the various factors of convenience, of nationality of citizenship in determining whether to retain jurisdiction.

William H. Rehnquist:

What about in England–

–Mr. Wagner… Mr. Wagner, the fact that the doctrine may have come up and been applied in some admiralty cases I don’t think negates the suggestion from Justice Ginsburg that it was applied across the board.

Thomas J. Wagner:

Right.

William H. Rehnquist:

It was applied in admiralty cases and in other kinds of cases.

Thomas J. Wagner:

Your Honor, I… Mr. Chief Justice, we agree that… with that principle, that is now a doctrine, whose efficacy, whose utility has been recognized in many other areas of law.

Antonin Scalia:

Mr. Wagner, even if you’re correct that it was first enunciated in dictum in admiralty cases in this country, was it first enunciated in the common law in admiralty cases?

My impression was that in the English cases it first came up not in admiralty cases at all.

Thomas J. Wagner:

I think, Justice Scalia, that the first consideration of it that I’m aware of was in cases in Scotland which were not–

Scottish trust cases, right.

Thomas J. Wagner:

–maritime cases, that’s correct, but my argument, or our principle here is that the admiralty law has a respected position by virtue of the Constitution, and that this particular doctrine, albeit with some roots in nonadmiralty, is a fundamental part of admiralty jurisdiction.

Antonin Scalia:

May I ask you what you meant when you said earlier that it’s important that this doctrine be applied uniformly?

Does that mean that you would say that a State court could not be neither more restrictive nor less restrictive in its doctrine of forum non conveniens?

Thomas J. Wagner:

My–

Antonin Scalia:

Neither way.

Thomas J. Wagner:

–My reference is that the rule should be uniform, but the interpretation of the rule is always subject to this discretionary input of the trial judge.

I do not think–

Antonin Scalia:

Well, of course, but I’m… you would say that a State, even if it wants to exclude on the basis of forum non conveniens more cases than the Federal courts would exclude, it cannot do that.

Thomas J. Wagner:

–Your Honor, that’s our position.

That’s our position.

Ruth Bader Ginsburg:

But then you’re saying that this doctrine must mean something different in admiralty than it does in other areas, because what do you do with Mayfield, where the Court made it clear that a State doesn’t have to copy the Federal position on forum non conveniens?

It can keep the case if it wants it, and it can dismiss if it wants it.

Thomas J. Wagner:

Justice Ginsburg, my response with reference to the Mayfield decision, which was the 1950 decision of this Court, was that it did not involve any of the constitutional or supremacy issues associated with the general maritime law, which has–

Ruth Bader Ginsburg:

But you just said that the doctrine is the same, the forum non conveniens doctrine is a doctrine that cuts across the law.

Now you seem to be saying that it’s different in admiralty than it is in other areas.

Thomas J. Wagner:

–Your Honor I may be misstating myself.

I may not be making myself clear.

What I’m saying is, the admiralty doctrine has been adopted by several other areas of law, and those other areas of law are free, because they are not constricted, by the uniformity of the general maritime law, to change and apply that doctrine in different fashions, but in admiralty, the Federal courts, and this Court in particular, is the ultimate arbiter of what the uniform rule should be.

Ruth Bader Ginsburg:

I’m not following your argument.

You’ve already recognized, in response to Justice Scalia’s question, that forum non conveniens does not emerge in the common law world for the first time in the context of admiralty, and it is a doctrine that is now applied across the board to cases that were once in equity at law in admiralty, but now you seem to be saying that this doctrine has some special character in admiralty cases that differs it from its shape in other cases.

Thomas J. Wagner:

I believe that it does, and it has that in two fashions, 1) because it is a part of the uniform admiralty law, which has a precedence, it has a supremacy that common law doesn’t necessarily have, and secondly, the admiralty jurisdiction is by its nature extremely broad, extremely vast.

It touches all sorts of areas of law.

Ruth Bader Ginsburg:

Why should it have a different application in admiralty than, say, under the FELA, which is a Federal statute?

Thomas J. Wagner:

Well, I would argue that the first reason is because of Article 3, section 2, clause 1 of the Constitution, which vests this Court, and vests the national courts with jurisdiction over all admiralty and maritime cases, and the cases that are interpreted that have all recognized that it is the function of this Court and the function of all courts to apply a uniform general maritime law, and that has a standing that the FELA does not have.

Ruth Bader Ginsburg:

The FELA’s a Federal statute–

Thomas J. Wagner:

That’s correct.

Ruth Bader Ginsburg:

–and it has to be interpreted uniformly by the Federal and State courts that apply it, is that not so?

Thomas J. Wagner:

But forum non conveniens is not part of the FELA, whereas forum non conveniens is an integral part of the general maritime law, and I might assert one other thing.

I think it’s very important to focus on the language of the Jones Act in adopting… in adopting the standard of the FELA.

I’m referring to the… just quoting from the Jones Act as quoted in the appendix of the Solicitor’s brief.

It says,

“Any seaman who shall suffer personal injury in the course of his employment may, at his election, maintain an action for damages at law with a right of trial by jury, and in such action, all statutes of the United States modifying, or extending, the common law right or remedy in cases of personal injury to railway employees shall apply. “

One of those statutes which extends and modifies the right of railway workers is section 1404 of the Judicial Code, which is a Federal transfer statute, which was passed explicitly by Congress to provide that FELA cases would be transferable under the same standards that had been judicially established under forum non conveniens.

Missouri v. Mayfield did not address that issue, it did not need to address that issue, because it was not a Jones Act case.

The Jones Act is a part of the admiralty law, and forum non conveniens as a part of the admiralty law are fused and form part of the uniform law.

It should be applicable–

Ruth Bader Ginsburg:

I don’t understand the point you’re making about 1404(a).

Ruth Bader Ginsburg:

If this case were brought in… let’s say it were brought in the Federal district court in Louisiana, it’s admiralty but the transfer mechanism would be 1404(a), right?

Thomas J. Wagner:

–Unless it was to be transferred internationally, Your Honor, in which event forum non conveniens–

Ruth Bader Ginsburg:

In that respect it’s not different from the FELA.

Thomas J. Wagner:

–Well, it… what I’m trying to express is that there is a dual basis for the uniform application of this doctrine.

One is as a part of the general maritime law, and the second is through the express… express text of Congress in the Jones Act in applying all statutes that modify FELA remedies, and indeed, that is exactly–

Ruth Bader Ginsburg:

To that extent, it’s the same as the FELA, and it doesn’t take you any further than Mayfield.

Thomas J. Wagner:

–Except that Mayfield did not concern itself 1) with the Jones Act, and 2) with the general maritime law of the United States.

That–

Ruth Bader Ginsburg:

As I understand one part of what the Jones Act takes from the FELA, if a plaintiff brings a Jones Act case in the State court, Congress has declared that nonremovable, right?

You can’t remove it to Federal court.

Thomas J. Wagner:

–The interpretation of this Court in the Romero decision is that such a claim is nonremovable.

Ruth Bader Ginsburg:

All right, so doesn’t that cut against your argument that the Congress wanted to say,

“Plaintiff, you have a right to stay in the State court, but State court, we’re going to make you conform your forum non conveniens doctrine to ours? “

It’s something that seems to me an inconsistency with a claim that’s not removable from the State court, Congress has made the judgment that the suitor should be able to choose the forum, and then say to the forum, State forum, but you have to make yourself over to look more like what a Federal court would–

Thomas J. Wagner:

Yes, Your Honor, we think that’s a very important distinction, is that the nonremovability of the Jones Act is something that is recognized, but this is not affected by the ability to transfer this action from one jurisdiction to another, and in fact Romero makes very explicit that while causes of action in State court may be maintained under the “savings to suitors” clause, there is an overriding obligation of the State court to do the work of admiralty, to be in admiralty court, to apply the uniform general maritime law even though the defendant cannot remove that… cannot otherwise remove the action that is otherwise removable.

William H. Rehnquist:

–But isn’t that–

–The Louisiana courts can’t transfer this case to Pennsylvania, can they?

Wouldn’t they simply have to dismiss it and let the plaintiff start anew in Pennsylvania?

Thomas J. Wagner:

They would dismiss it, Mr. Chief Justice, subject to certain guarantees protecting the plaintiff’s right to proceed, and that’s in fact what the district court did do after finding that Louisiana was a patently inconvenient forum, and was forum-shopping of the worst sort.

William H. Rehnquist:

So really, your procedures in State court, you say the forum non conveniens doctrine has to be applied uniformly, but whereas a Federal district court can transfer it to another Federal district, a State trial court can’t transfer it to a court in another State.

It has to go by a quite different procedure.

Thomas J. Wagner:

Well, Your Honor, by analogy, and that’s all I can answer, Mr. Chief Justice, is by analogy, is that between the jurisdictions within the State of Louisiana, the State court could transfer.

William H. Rehnquist:

That’s not what we have here.

Thomas J. Wagner:

That’s correct.

William H. Rehnquist:

No one is suggesting that it belonged in Western Louisiana rather than Eastern Louisiana.

The argument is it belonged in Pennsylvania, as I understand it.

Thomas J. Wagner:

That’s right, Mr. Chief–

Sandra Day O’Connor:

Mr. Wagner, do you acknowledge that there were sufficient minimum contacts here to meet the due process clause requirements to sue in Louisiana?

Thomas J. Wagner:

–Your Honor, I do at this juncture.

We disputed that at the trial court and lost it.

Thomas J. Wagner:

I have personal views about that, but we have conceded that point, and in fact, as a matter of general maritime law, forum non conveniens does not arise unless there is the existence of personal jurisdiction, the very minimum contacts Justice O’Connor referred to, and proper venue.

We concede those points for the sake of this argument.

Ruth Bader Ginsburg:

You’re converting discretionary doctrine… you just said that in order to get to the forum non conveniens point, you must have personal jurisdiction, there must be a place of proper venue, so the Court is vested with authority to proceed, and I thought that the whole idea of forum non conveniens was, but there are… but it isn’t a compulsory doctrine.

That is, although we have authority to proceed, we ought not, because there’s some place better where this can go forward, but the whole doctrine seems to be just infused with discretion rather than compulsion, which is what you seem to be making of it.

Thomas J. Wagner:

Your Honor, I… I want its application.

We request that its application be compulsory, but the doctrine itself, the heart and soul of the doctrine, the issue, the aspect of the doctrine that makes it so valuable, is its discretionary function in the trial judge.

The trial judge is able to weigh the various factors articulated by this Court and determine what is a fair forum for these litigants to try the cases, and the aspect of its discretionary function is why it serves the admiralty, and by that I mean, plaintiffs and defendants.

Antonin Scalia:

But Justice Ginsburg’s point is that when you have discretion that broad, different trial judges are going to come to different results, widely different results on the basis of the same facts, exactly what discretion is all about.

You can’t pretend that you’re going to get uniformity of result.

Once you… it’s just contradictory to argue that in the interest of uniformity we must have everybody adopt this discretionary doctrine.

You’re not going to get uniformity.

Thomas J. Wagner:

Justice Scalia, I agree with your point, and I think it demonstrates I’m not being clear.

I’m not… we are not requesting uniformity of result.

That can’t be done.

What–

Antonin Scalia:

Then it isn’t worth anything to the general maritime law, if you can’t be sure you’re going to get the same results anyway.

Thomas J. Wagner:

–You can never be sure you get the same results in any trial.

What we’re asking is uniformity of the rule.

We’re asking for the uniform application of the doctrine, just like we take a set of facts and we give them to one trier of fact and ask, is there fault, is there causation?

I cannot be sure what the answer will be, but what I can be sure of is the doctrine that defines what fault is, and that’s what we’re asking.

Antonin Scalia:

The uniform rule which says that a court can do anything it wants is a uniform rule, but it’s not very helpful.

Well, as I understand you, you’re not saying that the court can do anything it wants, you’re saying that if the facts are so extreme, as perhaps they are in this case, that it would always be an abuse of discretion to deny the motion, you ought to be entitled to it in those extreme cases.

Thomas J. Wagner:

That’s right.

Antonin Scalia:

And to that extent, it’s a uniform rule.

Thomas J. Wagner:

That’s right.

We’re asking for a rule that is subject to the discretion of the trial court, overturnable by abuse of discretion.

Antonin Scalia:

And that’ll be very rare.

Let me ask you why you think uniformity is helpful, or needful in this area.

As I understand it, maritime law proceeds from the assumption that international commerce has to have stable rules and uniform rules, but I thought that was so that people could rely upon those rules in formulating their conduct, but this has nothing to do with conduct.

It’s not something that one relies on.

Thomas J. Wagner:

Your Honor, I–

Antonin Scalia:

You know, how you keep your ship, how you execute your contracts, all of those things are not affected by the doctrine of forum non conveniens.

Presumably the same law is going to apply no matter where the suit is brought.

Thomas J. Wagner:

–I respectfully disagree that it doesn’t shape the conduct of the parties.

Once you have infused the admiralty law with this type of disunity, this type of dissonance, then you invite litigants to race to the favorable courthouse, which may or may not have this rule, which may or may not have other State rules, which may be friendly or may not be friendly, without regard to what is a fair forum, and so what… and I’ve cited it in our petition asking for cert–

Ruth Bader Ginsburg:

Well, it’s fair in the sense that there’s a basis for personal jurisdiction over your client that meets the due process requirement, so you can’t say that there’s something fundamentally unfair about being subject to suit in Louisiana when you have in effect consented to suit by filing in that State by registering.

Thomas J. Wagner:

–We agree that it satisfies due process requirements for the sake of personal jurisdiction.

Our point here is that if you don’t have uniform rule in admiralty that invites the court, that directs the court to consider what is a fair forum, while one plaintiff is resorting to filing in Louisiana, one insurer is filing a direct action statute in Pennsylvania, one employer is filing a direct… I’m sorry, a declaratory judgment in Pennsylvania and the employer is filing an action here.

You’re asking for the parties to race for the courthouse which will give it the best deal because you have not instilled in the trier of fact the ability to say, the fair forum for the case is, in this instance, Pennsylvania, without regard to who’s got the best law, without regard to whether it’s an American or non-American who has filed the claim.

It’s a fundamental rule of fairness that where should these maritime litigants… I think that the point made by Justice Jackson in the Lauritsen case speaks well to this.

If we let every jurisdiction which has any contact, or sufficient constitutional contact with a maritime litigant to exercise its full breadth of authority, the overlapping, duplicative burdens that will exist upon maritime actors will totally, totally surround and disrupt the ability to have effective maritime commerce.

It is for this reason, I… we respectfully submit, that the admiralty law, admiralty and maritime jurisdiction, is the one substantive area of jurisdiction recognized in Article III of the Constitution.

Harry A. Blackmun:

Mr. Wagner, let me take you off in a different direction.

You’ve been speaking of uniformity all along.

This case is between domestic parties, isn’t it?

Thomas J. Wagner:

That’s correct.

Harry A. Blackmun:

Suppose there were some foreign persons involved here.

Would you have different considerations that enter into your calculus?

Thomas J. Wagner:

I think different considerations enter into the trial judge’s weighing of its discretion depending upon the nationality of the parties, their residence, but I think the formula’s the same.

In fact, the Louisiana rule is not restricted in its focus on American or non-American claimants, and it’s not restricted to personal injury claimants.

Forum non conveniens has been a part of the admiralty law in every area… salvage, collision, personal injury, product liability, marine insurance, maritime leads.

The Louisiana rule would discard all of that.

Get jurisdiction, and let the State exercise its jurisdiction to the full breadth of its authority without regard to its impact on maritime commerce.

We respectfully submit that that is detrimental to the constitutional underpinnings of a system–

Ruth Bader Ginsburg:

Not all of maritime law.

I think in Louisiana now under their statute it’s only Jones Act claims that are–

Thomas J. Wagner:

–No, Your Honor, it applies to–

–Jones Act and maritime.

Thomas J. Wagner:

–Jones Act and maritime law.

Texas has recently amended its statute, but it’s unclear whether it’s affecting maritime law or not.

Thomas J. Wagner:

Our ultimate position is, the unfettered extension of jurisdiction without this discretionary authority on the part of the trial court, expressed I think most ably by Judge Federoff, by the trial judge, this forum is totally inconvenient, and represents forum shopping of the worst sort.

It was only through his ability to decide the case, an admiralty case, that he could direct this case into a fair forum.

Ruth Bader Ginsburg:

Well, it’s inconvenient for the defendant, not for the plaintiff.

Thomas J. Wagner:

Ah, but the plaintiff took the position… the plaintiff took the position that I could have filed in the Fourth Circuit Court of Appeals.

I could have filed in Mississippi, but I have an unfettered right to go where I want to go.

The plaintiff, the Mississippi resident, files in Louisiana.

So it’s hard to argue that this is a decision based upon convenience, and the plaintiff never challenged in the trial court, never challenged at that level at least, the fact that this was patently inconvenient.

Harry A. Blackmun:

But the plaintiff is totally disabled, do you concede that?

Thomas J. Wagner:

No, Your Honor, we do not concede that.

The plaintiff has said that in a footnote in his brief.

That was not raised at the trial court level, and–

Harry A. Blackmun:

Well, in Mississippi, true, but he’s not very far from New Orleans, is he?

Thomas J. Wagner:

–That’s correct, Your Honor.

That’s correct.

If I might, I’d like to reserve the balance of my time for rebuttal.

William H. Rehnquist:

Very well, Mr. Wagner.

Mr. Falcon, we’ll hear from you.

Timothy J. Falcon:

Mr. Chief Justice, and may it please the Court:

The policy of the State of Louisiana, which is articulated in Article 123 C of our Code of Civil Procedure, is not barred by, nor is it inconsistent with, congressional policies that underlie the Jones Act.

In fact, this law furthers those policies by ensuring that State courts of Louisiana will effectuate the Jones Act’s broad liberal venue provisions.

American Dredging Company has not come before this Court and demonstrated that Article 123 C, as it applies in this case, is unconstitutional, and that is really the–

Ruth Bader Ginsburg:

Mr. Falcon, one puzzling piece of this is that Louisiana now has a general forum non conveniens provision, and it exempts Jones Act and maritime.

You would think if the concern was the one that you just mentioned they’d put the FELA in the same category, because that, too, is a nonremovable Federal claim.

What is the explanation for exempting Jones Act and maritime law claims from the general forum non conveniens statute?

Timothy J. Falcon:

–If I can clarify, the Louisiana statute is not now a broad forum non conveniens application.

It only actually was enacted to allow a transfer between one district court in the State of Louisiana to another one.

There was a problem that was recognized in the Trahan case in Louisiana, that because of our civilian tradition which the forum non conveniens doctrine is foreign to, not a part of, Louisiana passed this article to allow a transfer on the forum non conveniens grounds from one district court to another, and at the same time they did allow a transfer out of State–

Ruth Bader Ginsburg:

Not a transfer–

Timothy J. Falcon:

–I’m sorry, a dismissal on forum non conveniens to an out-of-State court if it was premised on a Federal statute only, and at the same time, they decided to exempt the Jones Act from that type of dismissal.

Ruth Bader Ginsburg:

–But not the FELA.

Timothy J. Falcon:

Well, in fact, as the statute operates, the FELA claim can be transferred… I’m sorry, dismissed on forum non conveniens.

Ruth Bader Ginsburg:

So what was the reason for distinguishing these two claims that are so close in substance, FELA and Jones Act?

Timothy J. Falcon:

Yes, ma’am.

I believe that the real reason is, if you dismiss a FELA case on forum non conveniens, the case will be transferred most likely to another American jurisdiction.

The railroads only run across our land.

If you get dismissed from Louisiana, more than likely you’ll be in Missouri, or you’ll go to Montana, or you’ll go to some other State.

A dismissal under the Jones Act on forum non conveniens, especially today with the multinational corporations and the broad reach of where these people are being sent to, especially Louisiana and other people that work on these ships, they’re sent all around the world.

What happens when you go around the world, if your cause of action arises in Singapore and you come back to Louisiana and you get dismissed on forum non conveniens, you’ve got to go back to Singapore.

Sandra Day O’Connor:

Well, what about the situation of a case where one of the parties is foreign and the operative events occur beyond the borders of the United States?

Do you think Louisiana’s rule should be upheld in that situation?

Timothy J. Falcon:

The first thing you’d have to look at in that situation is whether or not the Jones Act applies.

You do the Lauritzen-Rhoditis analysis.

After you do that analysis, if the Jones Act applies, the Jones Act as a congressional announcement says the plaintiff has the right to file suit where the defendant is doing business.

So in that case, Louisiana, if they’re doing business in Louisiana, we meet the constitutional minimum requirements of substantial justice and fair play, then they can be sued there in furtherance of the congressional policy.

If it’s foreign litigants and the Jones Act does not apply, the traditions of admiralty have actually been that the Admiralty Court of the United States will hear those cases.

The… it’s talked about–

Anthony M. Kennedy:

Well, the Louisiana statute doesn’t require that it be… that the corporation… the defendant be doing business there, does it?

It’s just minimum contacts.

Timothy J. Falcon:

–The Louisiana statute is the same requirements as this Court’s constitutional requirements.

Anthony M. Kennedy:

All right, but that’s minimum contacts, not doing business.

Timothy J. Falcon:

Right.

The doing business that I’m referring to is the section 6 of the FELA Act itself, which says the employer can be sued wherever he’s doing business, and that’s incorporated into the Jones Act.

Congress gives the worker–

Anthony M. Kennedy:

But that’s not… is that a limitation on the jurisdictions in which the defendant may be sued?

Timothy J. Falcon:

–No.

That’s a venue provision.

That’s allowed venue provision.

It’s not a limitation.

The only limitations on the jurisdiction are this Court’s pronouncements in International Shoe and the other jurisdiction cases.

Ruth Bader Ginsburg:

But you have to meet a venue requirement in order to bring a Jones Act case.

Timothy J. Falcon:

Yes, but if this case… if we did not meet the jurisdiction requirements, American Dredging could have got out.

If we did not meet the venue requirements of FELA as enacted through Jones Act, they would also have gotten out.

Sandra Day O’Connor:

Was American Dredging doing business in Louisiana?

Timothy J. Falcon:

Yes, ma’am, they were doing business.

They had an agent for service of process.

In fact, they were using Louisiana courts themselves at the time as a plaintiff.

Sandra Day O’Connor:

Anything other than having an agent?

Timothy J. Falcon:

They were soliciting business through the American… I’m sorry, through the Corps of Engineers in order to get more work.

To answer… American Dredging Company puts major emphasis that the doctrine of forum non conveniens is a uniform and characteristic feature of the admiralty law.

If we look at the history of the admiralty law, in footnote 5 of the Moran case, which was decided by this Court, it’s actually… the admiralty law itself is traced to civilian doctrine.

The admiralty law rose through civilian law such as France and Louisiana, and as the supreme court of Louisiana said in the Miller case, the doctrine of forum non conveniens is actually foreign to our traditions, so it’s not fair to say that forum non conveniens came from admiralty, because the doctrine itself was foreign to the actual origin of admiralty, and to trace… and as Justice Ginsburg has pointed out, it was first recognized in a nonmaritime case.

American Dredging Company has also tried to state that section 1404(a), which allows the transfer of a FELA case, is applicable to this case and is the reason why we should… why the supreme court should be overruled.

The case they’re referring to is In Re Coal Air, which is a railroad case, that distinguished between section 6 of the FELA action dealing with the broad venue provision and 1404(a), which allowed only a Federal court to transfer a case.

That case was further clarified in Pope v. Atlantic Coast Railroads, where the court said that the FELA claim that’s filed in State court still cannot be dismissed under forum non conveniens if the State decided not to.

Unless the Court has any further questions–

William H. Rehnquist:

Thank you, Mr. Falcon.

Mr. Manning, we’ll hear from you.

John F. Manning:

Thank you, Mr. Chief Justice, and may it please the Court:

I just wish to emphasize three points very briefly.

First, as this Court recognized in Miles v. Apex Marine, maritime tort law is now a field dominated by Federal statute, and this Court has looked repeatedly to the Jones Act in defining the tort remedies available to a maritime employee like respondent.

The Jones Act, in turn, incorporates by reference the rights and remedies given to railway workers under the FELA, and this Court has repeatedly looked to FELA precedents in defining the scope of remedies available under the Jones Act.

Thus, the Mayfield case is highly relevant in this context, because there the Court held that under the FELA State courts are free to apply their own doctrine of forum non conveniens in FELA cases.

That… the Court said that the State courts are free to accept or reject the doctrine of forum non conveniens in those cases.

Thus, Mayfield is highly relevant here, and we believe that it disposes of the case both as to the Jones act claim and as to the unseaworthiness and maintenance and cure claims.

Sandra Day O’Connor:

Mr. Manning, would you address the forum party situation, please?

John F. Manning:

Yes, Your Honor.

The United States does not take a position on whether the doctrine of forum non conveniens would be available… would be a preemptive doctrine of Federal law in State courts, where foreign parties and events are involved.

I would note, however, that the United States urges this Court to leave that question open.

We believe that the considerations in such cases may well be different, for two reasons.

First, where foreign parties and events are involved, there may be, in addition to the considerations relied on by petitioner, considerations involving comity and reciprocity that implicate greater Federal interests.

John F. Manning:

Secondly, in the admiralty cases that have defined the doctrine of forum non conveniens going back to Willendson v. Forsoket in 1801 and the Ship Lerow in 1804, the doctrine was traditionally articulated in terms of its effect on foreign parties.

The Court would typically say, we have jurisdiction over this case.

However, we have… the trial court has discretion to decline to hear the case because foreign parties are involved.

Anthony M. Kennedy:

So there are two different doctrines?

The source of the forum non conveniens argument being presented in this case has a different source than the forum non conveniens doctrine as applied to foreigners?

John F. Manning:

Well, Justice Kennedy, the question is whether… is the Federal interest in the case, and we believe that there is a difference in the Federal interest that’s implicated when foreign parties are involved.

Anthony M. Kennedy:

Is it fair to say… you’re saying that there are two different forum non conveniens doctrines, one for foreign parties and the other for domestic parties?

John F. Manning:

Your Honor, we’re saying that there might be, and that the Court should reserve the question in this case.

Ruth Bader Ginsburg:

You’re talking about admiralty peculiarly?

You can have foreign parties in a diversity case, too.

John F. Manning:

That’s true, Justice Ginsburg, but in the admiralty cases traditionally the doctrine was applied most strongly wherein foreign parties are involved.

But again, I would like to emphasize that the United States is not taking a position on the foreign party situation, but simply urging the Court to reserve that question.

Ruth Bader Ginsburg:

You reserve two questions, one is whether, when you’re in a State court but the defendants are from abroad, that forum non conveniens might have a Federal flavor?

John F. Manning:

That’s correct.

Ruth Bader Ginsburg:

For… no matter what the character of the case, equity law, or admiralty?

John F. Manning:

Well, Your Honor, it might be different in admiralty cases, because there is a tradition of admiralty preemption that emanates from Article III.

That tradition might not be available when you deal with other forms of civil litigation.

There’s a tradition, Jensen v. Southern Pacific and so forth, of this Court’s finding preemptive force of admiralty law and admiralty cases in State court, so it may be a different answer for admiralty cases.

Again, we’re simply asking the Court to leave that–

Ruth Bader Ginsburg:

What do you make of the nonremovability of these claims, because if the Federal… if Congress wanted to give effect to the Federal policy, it could do that very easily simply by making these cases removable and then the Federal court could apply Federal forum non conveniens.

John F. Manning:

–We do find that highly significant, and in the domestic context we would note that the Jones Act has a venue provision that applies, as this Court has held, only in Federal court.

In fact, this Court has said that under the Jones Act the presumption that State courts are entitled to control… that States are entitled to control the dockets of their own courts was left undisturbed by Congress, and we think that is also highly relevant in addressing the forum non conveniens question, because it shows that Congress believed that matters of State court forum selection were matters for the court… were matters for the States when it enacted the Jones Act.

If there are no further questions–

Ruth Bader Ginsburg:

I have a question on what you meant by reciprocity.

You said considerations of reciprocity, comity.

Those are not always clear words that would figure when we’re dealing with a foreign party.

John F. Manning:

–Your Honor, traditionally in the doctrine… in the application of the doctrine of forum non conveniens in Federal admiralty cases, this Court has considered whether there was an interest on the part of a foreign party in whether this dispute should be resolved.

For example, if there was a dispute between a foreign seaman and the ship, and a foreign ship over wages, there was typically a question whether that was the kind of dispute that a foreign… that the foreign country would want resolved by the question… by the courts of this Nation.

Sometimes what would happen is the court would consult the consul of that foreign country and get in a sense approval before it would proceed with the case, and so questions of comity and reciprocity of treatment–

Ruth Bader Ginsburg:

But if it’s a Jones Act case, then we’re talking about U.S. substantive law applying.

John F. Manning:

–That’s right, Your Honor, and that goes to the question of choice of law, which as counsel for respondent indicated depends in part on the flag of the vessel, the nationality of the seaman, the nationality of the shipowner–

Ruth Bader Ginsburg:

If it weren’t in the U.S. interest, if this were a totally foreign situation, the Jones Act wouldn’t apply.

John F. Manning:

–It’s very likely that the Jones Act would not apply, and the cases which would suggest that are Romero and Lauritsen v. Larson, which are cited in our brief.

If there are no further questions–

William H. Rehnquist:

Thank you, Mr. Manning.

Mr. Wagner, you have 6 minutes remaining.

Thomas J. Wagner:

Thank you, Mr. Chief Justice.

I’d like to address a number of the points that were raised, but I don’t think any one is more important than the question whether or not there should be a different rule for one set of litigants as for another set.

I think the whole concept of a uniform general maritime law grows out of the recognition that in order to promote maritime commerce a single, expected system should be identified.

To take this rule of forum non conveniens that the lower courts have consistently applied to both national claimants and local claimants and international claimants and fragment it, and say, well, Mr. Plaintiff from Bermuda, you can have a forum non conveniens doctrine, or Mr. Defendant from America, you can or you cannot, is to harken back to the very kind of dichotomy, the very kind of local protectionism, that I submit was the reason the admiralty law was recognized–

Ruth Bader Ginsburg:

Mr. Wagner, you would have no case, would you, if this plaintiff came from Mississippi instead of Louisiana?

Thomas J. Wagner:

–If he came from Louisiana instead of Mississippi?

Yes, Your Honor.

Ruth Bader Ginsburg:

Louisiana… I’m sorry.

Thomas J. Wagner:

Yes, Your Honor, I would have no case whatsoever, and that’s exactly my point.

Ruth Bader Ginsburg:

This is all about the distance that this man lives, and he lives inside Mississippi instead of Louisiana.

If he lived across the border you would have no case.

Thomas J. Wagner:

I would have no case, but I respectfully disagree that it’s just about that.

It’s about what’s a fundamentally fair way to try a dispute between the parties without inviting the parties to have–

Ruth Bader Ginsburg:

All that changes if he moved… how many miles would he have to move to be inside the Louisiana borders?

Thomas J. Wagner:

–Maybe 60 miles, Your Honor, but the whole point… what changes, Your Honor, is we have taken away the power of the trial judge to decide what’s fair and what’s not fair.

In this very same court, the Civil District Court for the Parish of Orleans, in Markozannes v. Bermuda Starline, applying this very same statute, the Louisiana supreme court held that the trial court must hear a case, a Jones Act case, by a Greek seaman sailing a Panamanian vessel between Bermuda and Boston.

So it’s not merely the distance, Your Honor.

I respectfully submit it is the power of the trial judge to decide what’s fair, what’s proper.

Once you take away that power, you create all sorts of possibilities of extensive forum shopping and vexatious litigation.

Antonin Scalia:

The Government suggests that the last situation you describe could be handled by leaving open the possibility of a separate rule for cases where you have foreign defendants or plaintiffs.

What do you think?

Would you like half a loaf rather than none?

Is there something wrong with that proposal?

Thomas J. Wagner:

There’s something terribly wrong in principle with that, and that is, it’s the anathema of the general maritime law, and how do we divide that?

Thomas J. Wagner:

Does the American defendant get the nod over the foreign plaintiff?

Does the American plaintiff get the nod over the foreign defendant, and how foreign?

Do we then dissect this?

The whole beauty… beauty, the mastery of forum non conveniens is, is that it is discretionary.

It puts in the power of the trial judge, the person who will have to decide what’s convenient.

In Markozannes we had doctors testifying from Greece by phone.

The whole point of this is, that trial judge who faces these very critical issues of what’s fair and is not fair is able to say, this case is in a patently inconvenient forum, and like the Federal system I will dismiss this conditioned upon, Mr. Defendant, you not raising procedural or limitation objections and going forward in the proper forum of Pennsylvania.

That’s the mastery, that is the effectiveness of this tool.

It complements this broad, broad breadth of admiralty jurisdiction, whether it be obtained in rem, whether it be by writ of foreign attachment, whether it’s salvage or personal injury, it puts in the hands of the trial judge the ability, discretionary, to say, this is a fair forum.

It accords the plaintiff an appropriate deference to his or her original selection.

That is entitled to great weight, and it ensures… it ensures that the alternate forum will have a suitable remedy, and then it weighs the questions of what’s a convenient way to try this case, the convenience of the parties, the witnesses.

In fact, I need to make this fundamental point clear.

In admiralty, this has never been a question of what the Solicitor General has called judicial housekeeping, or docket control.

That’s handy in a nonmarine setting, but in admiralty, it services the broad breadth of that jurisdiction, makes it effective, and makes it fair, and I respectfully submit that on that basis the decision of the Louisiana supreme court should be reversed.

Thank you very much.

William H. Rehnquist:

Thank you, Mr. Wagner.

The case is submitted.

The honorable court is now adjourned until Monday next at ten o’clock.