APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE
Before SEITZ, Chief Judge, GIBBONS and GARTH, Circuit Judges
This is an appeal from a district court order dismissing actions against Texaco, Inc., and Texaco Panama, Inc., on the ground that the plaintiffs are bound by a forum non conveniens decision in another forum.*fn1 Because we conclude that the district court properly applied the principle of direct estoppel by judgment, we affirm its decision.
On January 11, 1971, the Paracas, a vessel of Peruvian registry, collided in the English Channel, twelve miles off the English coast, with the Texaco Caribbean, a tanker of Panamanian registry owned by a Panamanian corporation, Texaco Panama, Inc. (Texpan), and managed by a British corporation, Texaco Overseas Tankships, Ltd. (TOT).*fn2 Both vessels sank. TOT promptly notified Trinity House, an English corporation with the statutory duty of locating and marking wrecks off the English coast. A Trinity House vessel, the Siren, mistakenly assuming that an oil slick marked the location of the submerged hulk of the Texaco Caribbean, took up station on January 12, 1971. The Siren was in the wrong place, and the Brandenburg, a vessel of German registry, struck the submerged Texaco Caribbean. The Brandenburg sank with all her cargo; many members of her crew perished.
Several suits concerning the collisions were initiated in England on May 16, 1972, and are still pending.*fn3 Between November 27, 1972, and January 8, 1973, twelve identical individual lawsuits were filed against Texaco, Inc., and Texpan in the Southern District of New York by an attorney representing the estates of twelve deceased crewmen of the Brandenburg. Suits against Texaco, Inc., and Texpan were also filed in the Southern District of New York by the owners of the Brandenburg hull and cargo. Each suit alleged negligent failure to mark the wreckage of the Texaco Caribbean.
On January 9, 1973, actions were filed in the District of Delaware by the estates of the twelve seamen against Texaco, Inc., and Texpan. In all material respects the complaints were identical to those filed in New York. The parties stipulated that since the Delaware and New York suits were between the same parties and involved the same subject matter the actions in the District of Delaware would be stayed pending the outcome of the actions in the Southern District of New York.
Meanwhile in New York all the actions pending in the Southern District had been consolidated for all purposes. Eventually the district court there dismissed the several complaints on the ground that England, not New York, was the logical forum. A divided panel of the Second Circuit affirmed, and the Supreme Court denied certiorari in January, 1976.
Thereafter, the cargo owners of the Brandenburg (though not the vessel owners) filed a new complaint in Delaware, identical in all material respects to that previously dismissed in New York. The new complaint was consolidated with the complaints of the twelve estates. Texaco, Inc., and Texpan then moved to dismiss the Delaware complaints on the grounds that the decision in New York had established the facts and the law applicable to a forum non conveniens ruling, that the facts and law were equally applicable in Delaware, and that the New York judgment, therefore, necessitated a dismissal in Delaware.*fn4 The district court granted the motion.
The appellants concede, as they must, that had the New York judgment, now final, been on the merits, res judicata would bar the Delaware action. But they urge that the policy underlying res judicata does not apply to matters in abatement which may involve the exercise of discretion. A non-merits judgment following a plea in abatement, however, does create a direct estoppel as to matters which were actually adjudicated. This is made clear in the Restatement of Judgments § 49, Comment b (1942):
Although, where the judgment for the defendant is not on the merits, the plaintiff is not precluded from maintaining a new action on the same cause of action, he is precluded from relitigating the very question which was litigated in the prior action....
This is an instance of direct estoppel rather than collateral estoppel (see § 68), since the second action is based upon the original cause of action (see § 45(c) and Comment d thereon). The matter actually litigated and determined is res judicata between the parties in a subsequent action involving the same matter, whether the subsequent action is based upon the same or a different cause of action.
See also 1B Moore's Federal Practice [*] 0.405, at 659-60 (2d ed. 1965).
In the New York case the Second Circuit considered and applied each of the factors listed in Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 91 L. Ed. 1055, 67 S. Ct. 839 (1947), bearing upon the decision to dismiss on the ground of forum non conveniens - including the availability of witnesses, the amenability of all interested parties to service of process, and the governing law of liability and damages. The appellants point to no objective fact establishing that, unlike New York, Delaware would be a more convenient forum than England or that Delaware would be even as convenient as New York. Indeed, it appears that the only reason Delaware was resorted to was that under 28 U.S.C. § 1332(c) Texaco, Inc., a Delaware corporation, may be sued there. The tenuous connection between this dispute and the Southern District of New York, which the Second Circuit found insufficient, was the presence in the district of some Texaco, Inc., employees who might be ...