Loya v. Starwood Hotels ( 2009 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
GILLIAN B. LOYA, as Personal 
representative of the Estate of
Ricardo D. Loya, deceased and as
Litigation Guardian Ad Litem for
I.L. and G.L., the surviving minor
children of the decedant, Ricardo
D. Loya; Estate of RICHARD D.
LOYA,
Plaintiffs-Appellants,
v.
STARWOOD HOTELS & RESORTS
WORLDWIDE, INC., doing business
as Westin Hotel Company, doing
business as Westin Regina Golf No. 07-35571
Beach Resort and Club Regina
Westin Hotel Company doing  D.C. No.
CV-06-00815-MJP
business as Westin Regina Golf
OPINION
and Spa Resort; CORPORATION
MEXITURE SA DE CV, doing
business as Xplora Adventours
Los Cabos; PADI WORLDWIDE; PADI
AMERICAS; JOHN DOES; RAINTREE
RESORTS INTERNATIONAL INC, doing
business as Club Regina WESTIN
HOTEL MANAGEMENT LP; WHISKI
JACK RESORTS AND CLUB Consent
to Service; RESORT CONDOMINIUMS
INTERNATIONAL LLC; DOUGLAS
BECH; RAINTREE VACATION CLUB;
WALKER HARMON,
Defendants-Appellees.

14249
14250 LOYA v. STARWOOD HOTELS & RESORTS
Appeal from the United States District Court
for the Western District of Washington
Marsha J. Pechman, District Judge, Presiding
Argued and Submitted October 21, 2008
Submission Vacated October 30, 2008
Resubmitted August 21, 2009
Seattle, Washington
Filed October 2, 2009
Before: Diarmuid F. O’Scannlain, Pamela Ann Rymer, and
Andrew J. Kleinfeld, Circuit Judges.
Opinion by Judge Rymer;
Dissent by Judge Kleinfeld
LOYA v. STARWOOD HOTELS & RESORTS 14253
COUNSEL
Scott E. Stafne, Stafne Law Firm, Arlington, Washington,
(argued); Martin D. Fox, Martin D. Fox, Inc., Seattle, Wash-
ington, for the plaintiffs-appellants.
Melissa O. White (argued) and Rodney Q. Fonda, Cozen
O’Connor, Seattle, Washington, for the defendants-appellees.
OPINION
RYMER, Circuit Judge:
This appeal involves applicability of the doctrine of forum
non conveniens to claims arising out of the death of a Wash-
ington resident while scuba diving off the coast of Mexico on
an expedition arranged by the resort at which he was staying
in Cabo San Lucas. In particular, it poses the question
whether a claim implicating the Death on the High Seas Act
(DOHSA), 46 U.S.C. § 30301 et seq., is subject to dismissal
on the basis of forum non conveniens. The district court, rely-
14254 LOYA v. STARWOOD HOTELS & RESORTS
ing on the D.C. Circuit’s opinion in Pain v. United Tech.
Corp., 637 F.2d 775, 780-81 (D.C. Cir. 1980), held that
DOHSA actions are within the admiralty jurisdiction of the
federal courts, and are subject to discretionary dismissal. It
dismissed this action after considering the private and public
interest factors that inform a forum non conveniens decision.
We agree that the doctrine of forum non conveniens may be
invoked in this case, and conclude that the district court did
not clearly abuse its discretion in applying it. Accordingly, we
affirm.
I
Gillian Loya’s husband, Ricardo, died in a scuba diving
accident off the Mexican coast where he was vacationing at
the Westin Resort & Spa Los Cabos (a Starwood Hotel and
Resorts Worldwide hotel1) in San Jose del Cabo, Baja Califor-
nia Sur. The Loyas went to Cabo with friends who exchanged
a timeshare they had at Whistler for one at Club Regina Los
Cabos, the timeshare portion of the Westin resort that is
owned by Raintree Resorts International. The scuba diving
trip was arranged through Xplora Adventours Los Cabos,
which worked in Cabo with the Westin. Allegedly, the guide
was underage by PADI standards (PADI certifies dive cen-
ters), abandoned Ricardo, and failed to rescue him. Loya, a
Washington resident, filed an action against these entities and
others in Washington state court for dereliction of duty that
resulted in her husband’s wrongful death. The complaint also
asserted claims under the Washington Consumer Protection
Act (WCPA) and the Washington Timeshare Act (WTA) for
falsely advertising that the Westin Resort provided safe scuba
diving activities. Starwood removed on the basis of diversity
and admiralty jurisdiction. Loya then amended the complaint
to charge Raintree with violating the WTA and WCPA by
failing to consent to personal jurisdiction in Washington.
1
Starwood takes the lead on appeal, and we refer to all defendants col-
lectively as “Starwood.”
LOYA v. STARWOOD HOTELS & RESORTS 14255
When Loya sought partial summary judgment on her state
law claims, Starwood cross-moved for dismissal on the
ground of forum non conveniens. The district court denied
Loya’s motion but granted Starwood’s. In doing so, the court
rejected Loya’s argument that the doctrine of forum non con-
veniens is inapplicable because DOHSA provides the exclu-
sive remedy for American beneficiaries and mandates venue
in a United States district court. Instead, relying on Pain, the
court held that DOHSA actions are within the admiralty juris-
diction of the federal courts and, whether or not DOHSA
applies to this action, the Act does not preclude forum non
conveniens dismissal. The court then ruled that an adequate
alternative forum was available. After considering private and
public interest factors, it concluded that dismissal was appro-
priate for the main reasons that Baja California Sur, Mexico
is a more convenient forum, and the nucleus of Loya’s case
is the place where the accident occurred.
Loya timely appeals.2
II
At its core, Loya’s position is that DOHSA effectively pre-
cludes dismissal on grounds of forum non conveniens. As she
recognizes, nothing in DOHSA says so, but she maintains that
Congress did not intend for the forum non conveniens doc-
trine to eliminate access by an American beneficiary to a rem-
edy under DOHSA for the wrongful death of an American on
the high seas.
DOHSA was enacted in 1920 to overrule the Supreme
Court’s decision in The Harrisburg, 119 U.S. 199 (1886), that
admiralty afforded no remedy for wrongful death in the
2
After argument we requested and received supplemental briefing on
the substantive law that may govern Loya’s claim for wrongful death, and
its implications for the forum non conveniens analysis. We appreciate both
parties’ response.
14256 LOYA v. STARWOOD HOTELS & RESORTS
absence of an applicable state or federal statute. 46 U.S.C.
§ 761 et seq. The Act created a remedy in admiralty for
wrongful deaths more than “a marine league” from shore
(§ 761), limited the class of beneficiaries (§ 761), established
a two-year period of limitations (§ 763), and provided that the
recovery shall be a “fair and just compensation” for the pecu-
niary loss sustained by the persons for whose benefit the suit
is brought (§ 762). It also preserved the right to maintain suit
in admiralty in the courts of the United States whenever a
right of action for wrongful death is granted by the law of a
foreign state. Id., § 764. DOHSA was amended in 2006 and
recodified at 46 U.S.C. § 30301 et seq. Although the language
changed somewhat, the changes are not material for purposes
of this appeal.
[1] Loya argues that the district court’s foundational error
was following Pain, which erroneously led it to conclude at
the outset that dismissal was an option, instead of applying a
choice of law analysis under Zipfel v. Haliburton Co., 832
F.2d 1477 (9th Cir. 1987), as modified, 851 F.2d 565 (9th Cir.
1988), to determine whether DOHSA implicitly speaks to and
rejects the application of forum non conveniens. In Pain, an
American citizen who lived in Norway was killed, along with
others, in a helicopter crash into the North Sea, and dece-
dents’ survivors brought suit against the American manufac-
turer. They argued that their DOHSA claim arose under the
laws of the United States within the meaning of the district
court’s federal question jurisdiction and that the court’s juris-
diction was thus mandatory. The court of appeals held other-
wise, noting that DOHSA provides only that a suit may be
maintained “ ‘in the district courts of the United States, in
admiralty.’ ” Pain, 637 F.2d at 781 (quoting 46 U.S.C. § 761)
(emphasis in original).3 DOHSA continues to authorize only
3
Section 761 provided:
[W]henever the death of a person shall be caused by wrongful
act, neglect, or default occurring on the high seas beyond a
LOYA v. STARWOOD HOTELS & RESORTS 14257
a “civil action brought in admiralty.” 46 U.S.C. § 30302
(emphasis added). Loya distinguishes Pain because it
involved multiple plaintiffs just one of whom was an Ameri-
can, whereas here the only plaintiff is a resident of the state
of Washington; but that difference has nothing to do with the
text of the statute itself, which plainly states that a DOHSA
action lies in admiralty. The doctrine of forum non conveniens
is well accepted in admiralty law. See, e.g., American Dredg-
ing Co. v. Miller, 510 U.S. 443, 449-50 (1994).
[2] Zipfel does not lead to a different result. The district
court there had dismissed on grounds of forum non conve-
niens a claim under the Jones Act, 46 U.S.C. § 688, filed on
behalf of an American seaman and foreign seamen killed in
an aircrash in Indonesia. Reversing as to the American sea-
man, we reiterated our rule in Jones Act cases that a court
must first make a choice of law determination before dismiss-
ing for forum non conveniens. Zipfel, 832 F.2d at 1482 (citing
Pereira v. Utah Transport, Inc., 764 F.2d 686, 688 (9th Cir.
1985)). Although we decided that foreign law applied to the
claims of the foreign seamen, it was conceded that American
marine league from the shore of any State, or the District of
Columbia, or the Territories or dependencies of the United States,
the personal representative of the decedent may maintain a suit
for damages in the district courts of the United States, in admi-
ralty, for the exclusive benefit of the decedent’s wife, husband,
parent, child, or dependent relative against the vessel, person, or
corporation which would have been liable if death had not
ensued.
In its present form, 46 U.S.C. § 30302, the statute provides:
When the death of an individual is caused by wrongful act,
neglect, or default occurring on the high seas beyond 3 nautical
miles from the shore of the United States, the personal represen-
tative of the decedent may bring a civil action in admiralty
against the person or vessel responsible. The action shall be for
the exclusive benefit of the decedent’s spouse, parent, child, or
dependent relative.
14258 LOYA v. STARWOOD HOTELS & RESORTS
law — the Jones Act — applied to the claim on behalf of the
deceased American seaman.4 This, we concluded, foreclosed
dismissal as to the American for forum non conveniens
because the Jones Act has a specific venue provision.5
DOHSA has no analogous provision. For this reason, Zipfel:
threshold choice of law analysis is not dispositive. Lueck v.
Sundstand Corp., 236 F.3d 1137, 1148 (9th Cir. 2001) (hold-
ing that the Zipfel choice of law analysis is only determinative
when the case involves a United States statute requiring venue
in the United States, such as the Jones Act or the FELA). As
we explained in Lueck, the purpose of a choice of law inquiry
in a forum non conveniens analysis is to determine if the
Jones Act, or the FELA, with special provisions mandating
venue in the United States district courts, would apply. Id. at
1148 (citing Creative Tech., Ltd. v. Aztech Sys. Pte., Ltd., 61
F.3d 696, 700 (9th Cir. 1995)). Albeit without citing Zipfel,
the district court considered the impact of DOHSA on the
applicability of forum non conveniens, and contrasted an
action arising under DOHSA with an action arising under a
4
We determined that foreign law applied to the claims of the foreign
seamen by considering the factors set out in Lauritzen v. Larsen, 345 U.S.
571, 583-92 (1953), also a Jones Act case. These factors are: place of the
wrongful act; law of the flag; allegiance or domicile of the injured; alle-
giance of the shipowner; place and choice of law of the contract; inacces-
sibility of a foreign forum; and law of the forum. An eighth factor — the
shipowner’s base of operation — was added by the Court in Hellenic
Lines, Ltd. v. Rhoditis, 398 U.S. 306, 308-09 (1970).
5
“Jurisdiction in [actions under the Jones Act] shall be under the court
of the district in which the defendant employer resides or in which his
principal office is located.” 46 U.S.C. § 688(a). The Jones Act incorpo-
rates the Federal Employers’ Liability Act (FELA), 46 U.S.C. § 688(a),
which also has a specific venue provision: “Under this chapter an action
may be brought in a district court of the United States, in the district court
of the residence of the defendant, or in which the cause of action arose,
or in which the defendant shall be doing business at the time of commenc-
ing such action.” 45 U.S.C. § 56.
The Jones Act provision has been recodified at 46 U.S.C. § 30104(b):
“An action under this section shall be brought in the judicial district in
which the employer resides or the employer’s principal office is located.”
LOYA v. STARWOOD HOTELS & RESORTS 14259
statute such as the Jones Act. We see no reversible error in its
conclusion that this action is amenable to discretionary dis-
missal, for DOHSA does not entitle Loya to have her case
heard in a United States court.6
Loya suggests that using the doctrine of forum non conve-
niens to dismiss her claim undercuts the exclusive DOHSA
remedy that Congress intended to provide in a United States
district court, thus contravening the Supreme Court’s enjoin-
der in Mobil Oil Corp. v. Higginbotham, 436 U.S. 618, 624-
25 (1978), that “when [DOHSA] does speak directly to a
question, the courts are not free to ‘supplement’ Congress’
answer so thoroughly that the Act becomes meaningless.” Id.
at 625. DOHSA, of course, does not “speak directly” to the
issue of mandatory jurisdiction. In any event, the doctrine of
forum non conveniens is “nothing more or less than a super-
vening venue provision” that goes to “process rather than sub-
stantive rights.” American Dredging, 510 U.S. at 453. The
doctrine “does not bear upon the substantive right to recover.”
Id. at 454. Consequently, dismissing on grounds of forum non
conveniens does not run afoul of Higginbotham.
Loya further posits that because Congress enacted DOHSA
to provide “a uniform and effective wrongful death remedy
for survivors of persons killed on the high seas,” Offshore
Logistics, Inc. v. Tallentire, 477 U.S. 207, 214 (1986), the dis-
trict court may not, through use of forum non conveniens,
abrogate the rights of United States beneficiaries to the “fair
and just compensation for the pecuniary loss” that Congress
intended to provide.7 However, just as the forum non conve-
6
We also see no reversible error on account of the district court’s failure
expressly to consider the Lauritzen factors. They would only have led to
the conclusion that Loya’s claim was not subject to a statute with a spe-
cific venue provision such as the Jones Act. See Zipfel, 832 F.2d at 1482.
7
Prior to the 2006 amendments, DOHSA provided:
[T]he recovery in such suit shall be a fair and just compensation
for the pecuniary loss sustained by the persons for whose benefit
14260 LOYA v. STARWOOD HOTELS & RESORTS
niens doctrine does not expand the substantive law on wrong-
ful death, the doctrine does not contract it, either. Application
of the doctrine simply shifts the forum where the claim will
be decided.
Loya relies on Howard v. Crystal Cruises, 41 F.3d 527 (9th
Cir. 1994), where we upheld the district court’s determination
that DOHSA governed the wrongful death claim of an Ameri-
can who was injured while disembarking a cruise ship of
Bahamian registry operated by a California corporation in
Mexico. However, Howard does not support Loya’s position;
it did not involve the doctrine of forum non conveniens. The
question there was whether DOHSA, as opposed to general
maritime law, could apply to death in the territorial waters of
another country. We concluded that it could, and in that con-
text opined that “there is nothing inherently absurd with the
notion of an American court applying American law to an
action filed by an American plaintiff against an American
defendant, particularly when the law in question was
expressly designed to cover wrongful deaths occurring out-
side the territorial boundaries of the United States.” Id. at 529-
30. This does not mean that the doctrine of forum non conve-
niens is unavailable if DOHSA applies.
the suit is brought and shall be apportioned among them by the
court in proportion to the loss they may severally have suffered
by reason of the death of the person by whose representative the
suit is brought.
46 U.S.C. § 762.
In its present form, DOHSA provides:
The recovery in an action under this chapter shall be a fair com-
pensation for the pecuniary loss sustained by the individuals for
whose benefit the action is brought. The court shall apportion the
recovery among those individuals in proportion to the loss each
has sustained.
46 U.S.C. § 30303.
LOYA v. STARWOOD HOTELS & RESORTS 14261
[3] Accordingly, we hold that DOHSA neither explicitly,
nor implicitly, rejects application of the doctrine of forum non
conveniens.
III
[4] Given our conclusion that the district court could dis-
miss on grounds of forum non conveniens, the remaining
question is whether it clearly abused its discretion in doing so.
American Dredging, 510 U.S. at 455 (noting that the forum
non conveniens determination is committed to the sound dis-
cretion of the trial court and may be reversed only when there
has been a clear abuse of discretion); Creative Tech., 61 F.3d
at 699 (same). “[W]here the court has considered all relevant
public and private interest factors, and where its balancing of
these factors is reasonable, its decision deserves substantial
deference.” American Dredging, 510 U.S. at 455 (quoting
Piper Aircraft Co. v. Reyno, 454 U.S. 235, 257 (1981)); Cre-
ative Tech., 61 F.3d at 699.
[5] “A party moving to dismiss on grounds of forum non
conveniens must show two things: (1) the existence of an ade-
quate alternative forum, and (2) that the balance of private
and public interest factors favors dismissal. This showing
must overcome the ‘great deference . . . due plaintiffs because
a showing of convenience by a party who has sued in his
home forum will usually outweigh the inconvenience the
defendant may have shown.’ ” Lockman Found. v. Evangeli-
cal Alliance Mission, 930 F.2d 764, 767 (9th Cir. 1991) (quot-
ing Contact Lumber Co. v. P.T. Moges Shipping Co., 918
F.2d 1446, 1449 (9th Cir. 1990)). Private interest factors
include “(1) relative ease of access to sources of proof; (2) the
availability of compulsory process for attendance of hostile
witnesses, and cost of obtaining attendance of willing wit-
nesses; (3) possibility of viewing subject premises; (4) all
other factors that render trial of the case expeditious and inex-
pensive. “ Creative Tech., 61 F.3d at 703 (quoting Zipfel, 832
F.2d at 1485). Public interest factors include “(1) administra-
14262 LOYA v. STARWOOD HOTELS & RESORTS
tive difficulties flowing from court congestion; (2) imposition
of jury duty on the people of a community that has no relation
to the litigation; (3) local interest in having localized contro-
versies decided at home; (4) the interest in having a diversity
case tried in a forum familiar with the law that governs the
action; (5) the avoidance of unnecessary problems in conflicts
of law.” Id. at 703-04.
The district court found that Baja California Sur, Mexico
provides an adequate forum because all defendants agreed to
accept service, submit to the jurisdiction, and waive any stat-
ute of limitations defenses; Loya could bring a tort-based suit
there; and Mexican courts would afford some remedy, even
though less than available in this country. (Loya’s expert, a
Mexican lawyer experienced in advising foreign litigants
about the Mexican legal system, declared that any wrongful
death recovery would be capped, in accordance with a for-
mula driven by the highest daily minimum wage in the region,
at $12,000-13,000, with little likelihood for recovery of moral
damages or at least none in excess of $4,000. He also indi-
cated that Mexican attorneys do not work on a contingency
basis and his firm would charge about $50,000 to litigate this
case.)
[6] Addressing the private interest factors, the court found
that the relative ease of access to sources of proof and obtain-
ing witnesses favor Starwood, as does the fact that a Mexican
judgment would be enforceable in the United States. It noted
that, although Loya has sued American defendants rather than
the Mexican subsidiaries of Starwood and Raintree, Ricardo
Loya’s death and the activities leading up to the accident
occurred in Mexico and that, other than Gillian Loya (who
was not on the dive), Ricardo Loya’s diving partner (who
lives in California and will not willingly go to Cabo), and the
friends with whom the Loyas went on the trip, potential liabil-
ity witnesses and relevant documentation are located in Mex-
ico.8 In the trial court’s view, other factors did not favor either
side.
8
These include employees of the Club Regina Los Cabos and of the
company that arranged the scuba diving trip; the person who drove
LOYA v. STARWOOD HOTELS & RESORTS 14263
[7] With respect to public interest factors, the court found
that court congestion in Baja California Sur weighs in favor
of Loya. While Washington has an interest in preventing mis-
representations to its residents about the safety of a Mexican
vacation, the court held that Mexico’s substantial interest in
holding businesses operating in Mexico accountable and
insuring that foreign tourists are treated fairly favors Star-
wood given that the gravamen of Loya’s complaint is that
Starwood, operating in Mexico, caused Ricardo Loya’s death.
In evaluating the public interest in having trial in a forum
familiar with the governing law, the court looked to the test
Washington applies to determine choice of law (if laws con-
flict, then the laws of the forum with the “most significant
relationship” govern). It concluded that Mexican law may
apply to some issues, particularly the applicable standard of
care and interpretation of any liability release signed by
Ricardo Loya. In the court’s view, the need to apply foreign
law strongly favors dismissal based on forum non conveniens.
Finally, the court found no cause to burden Washington jurors
with this litigation given that most of the allegedly wrongful
conduct took place in Mexico and among non-Washington
defendants.
Considering all these factors, the district court found that
dismissal was appropriate for two important reasons: Baja
California Sur is an adequate alternative forum, and the
nucleus of Loya’s case is where Ricardo Loya’s accident
Ricardo Loya to Cabo Pulmo, where the dive trip began; the captain of the
dive boat; the owner and employees of the dive shop, including dive
instructors and an instructor who assisted in the search; the captain of the
boat that transported Ricardo Loya back to the dock; the driver of the
truck that brought him to a doctor; employees of Xplora Adventours; and
the Mexican officials who investigated the accident. The evidence shows
that documentary evidence relating to the corporate structure of certain
Starwood and Raintree entities will be found outside the state of Washing-
ton. A release may have been executed when Ricardo Loya signed up for
the trip.
14264 LOYA v. STARWOOD HOTELS & RESORTS
occurred. On balance, the court believed that the public and
private factors weigh in favor of Starwood. Thus, it concluded
that Baja California Sur is the more convenient, therefore
appropriate, forum.
[8] Loya emphasizes the heightened deference owed to
American citizens suing American defendants in their home
forum. We afford greater deference to a plaintiff’s choice of
home forum because it is reasonable and convenient. How-
ever, the deference due is “far from absolute.” Lockman
Found., 930 F.2d at 767 (noting that we have recognized that
“[t]he presence of American plaintiffs . . . is not in and of
itself sufficient to bar a district court from dismissing a case
on the ground of forum non conveniens”) (quoting Cheng v.
Boeing Co., 708 F.2d 1406, 1411 (9th Cir. 1983)). A district
court has discretion to decide that a foreign forum is more
convenient. See, e.g., Piper Aircraft, 454 U.S. at 257; Lock-
man Found., 930 F.2d at 767; Contact Lumber, 918 F.2d at
1449. Here, Baja California Sur is where the scuba diving trip
was arranged, documented, outfitted, undertaken, and investi-
gated.9 We cannot say that the court acted unreasonably in
deciding that these circumstances made Baja California Sur a
more convenient, and appropriate, forum.
[9] Loya also focuses on the considerable difference in
potential recovery, as well as in the cost of pursuing this
action, in Mexico. The remedy afforded may not be “so
clearly inadequate or unsatisfactory that it is no remedy at
9
The district court recognized that Loya also asserts claims against some
defendants for false advertising and that proof of those claims is more
accessible in the United States, but believed that the wrongful death claim
is central. This is not unreasonable. Except for her claim against Raintree
for failing to consent to service of process, all of Loya’s claims revolve
around the claim that negligence of various people in Mexico caused
Ricardo Loya’s death. We have reviewed Loya’s state law claims to the
extent necessary to satisfy ourselves that they are neither the centerpiece
of her action, nor of sufficient merit to give Washington more than a slight
interest in their resolution.
LOYA v. STARWOOD HOTELS & RESORTS 14265
all.” Lockman Found., 930 F.2d at 768. However, that the
law, or the remedy afforded, is less favorable in the foreign
forum is not determinative. Piper Aircraft, 454 U.S. at 247
(stating that “[t]he possibility of a change in substantive law
should ordinarily not be given conclusive or even substantial
weight in the forum non conveninens inquiry.”). A foreign
forum must only provide the plaintiff with “some” remedy in
order for the alternative forum to be adequate. Lueck, 236
F.3d at 1143-44 (rejecting the plaintiffs’ argument that New
Zealand offered no remedy for their losses because it has leg-
islated tort law out of existence, and noting that the district
court was not required to ask whether plaintiffs could bring
this lawsuit there but rather, whether New Zealand offered “a”
remedy). Unquestionably, Mexico provides a remedy for
breach of contract and for wrongful death. Having taken all
of these considerations into account, the district court’s con-
clusion that Baja California Sur was nevertheless a more con-
venient forum is not unreasonable. See Piper Aircraft, 454
U.S. at 249 (observing that convenience is the central focus
of the forum non conveniens inquiry, and rejecting the notion
that the possibility of an unfavorable change in law should be
given substantial weight so as to bar dismissal even where
trial in the chosen forum is plainly inconvenient).
Further, Loya contends that the choice of law issues should
have been resolved by application of the Lauritzen factors
rather than by Washington choice of law rules. This is not,
however, an argument that she made in the district court. As
the judge observed, Loya did not contradict Starwood’s
choice of law analysis. Loya’s only response to Starwood’s
submission that Mexican substantive law would apply was
that the district court was familiar with DOHSA and with the
laws of Washington that would apply when construing the
Timeshare Act and the Consumer Protection Act. Therefore,
the argument that she now makes is waived. Even so, Loya
does not explain why or how the Lauritzen factors would
require a different outcome. In these circumstances, we
decline to upset the district court’s view that Mexican law
14266 LOYA v. STARWOOD HOTELS & RESORTS
may apply to the applicable standard of care and interpreta-
tion of any liability release signed by Ricardo Loya.10
Finally, Loya submits that the district court offered no
explanation why enforceability of a Mexican judgment in the
United States would make Mexico a better forum. This factor
did not, however, figure into the court’s conclusion that Mex-
ico was a more convenient forum; the court simply indicated
that it favored Starwood.
[10] In sum, the trial court considered all the relevant fac-
tors and balanced the interests reasonably. Given this, we owe
its decision substantial deference.
IV
[11] We conclude that the Death on the High Seas Act,
unlike the Jones Act, does not preclude dismissal on the basis
of forum non conveniens. The district court found that Baja
California Sur is an adequate alternative forum, reasonably
balanced the public and private interest factors that inform a
forum non conveniens determination, and concluded that Baja
California Sur is a more convenient, thus appropriate, forum.
Accordingly, it dismissed this action on grounds of forum non
conveniens. In doing so, it did not clearly abuse its discretion.
AFFIRMED.
10
That the court’s view is not unreasonable is well illustrated by the
Seventh Circuit’s opinion in Spinozzi v. ITT Sheraton Corp., 174 F.3d
842, 845-46 (7th Cir. 1999). There, an Illinois resident fell while he was
a guest at a Sheraton resort in Acapulco. Affirming the district court’s
determination that Mexico had the most significant relationship with the
case and that Mexican law would govern the substantive issues, the court
of appeals pointed out the absurdity of Spinozzi’s position that he should
be able to carry with him the tort law of his state provided that he stayed
in a hotel that had advertised in Illinois.
LOYA v. STARWOOD HOTELS & RESORTS 14267
KLEINFELD, Circuit Judge, dissenting:
I respectfully dissent. The district court treated forum non
conveniens as less than the “exceptional tool to be employed
sparingly”1 that it is, and applied it overly aggressively. The
district court, as we agree, erred as a matter of law by failing
to apply the Lauritzen2 factors to choice of law. While the
plaintiff has not made clear how application of the correct fac-
tors would change the result, and should have, the error of law
in failing to apply the Lauritzen factors affected an already
dubious forum non conveniens determination, so we ought to
give the district court an opportunity to apply correct law
before we say it makes no difference.
Though the death giving rise to this case occurred in Mexi-
co’s waters, the American connections with the case are very
substantial indeed. Loya was American, as are his wife—who
is personal representative of his estate—and his children.
Loya died, as we understand the facts, while scuba diving at
the Westin resort in Cabo San Lucas, a death that might have
been prevented had the resort used someone competent and
properly certified to manage his oxygen tank, and had the
potential rescue vessel not passed by without performing a
rescue. The Loyas’ lawsuit focuses on the American time-
share and resort companies that they claim ought to have
assured higher safety standards to Americans vacationing in
their resort in Mexico.
By contrast, in Piper Aircraft Co. v. Reyno,3 the Supreme
Court decision laying out the forum non conveniens law we
must apply, a U.K. air taxi crashed a U.K.-owned plane in the
Scottish highlands, killing the pilot and passengers, all of
whom, along with their heirs and next of kin, were Scottish.
1
Ravelo Monegro v. Rosa, 211 F.3d 509, 514 (9th Cir. 2000).
2
Lauritzen v. Larsen, 345 U.S. 571 (1953).
3
454 U.S. 235 (1981).
14268 LOYA v. STARWOOD HOTELS & RESORTS
And in Lauritzen v. Larsen,4 every substantial connection to
the case except for the Cuban location of the injury was Dan-
ish, as the Court took pains to lay out:
Larsen, a Danish seaman, while temporarily in New
York joined the crew of the Randa, a ship of Danish
flag and registry, owned by petitioner, a Danish citi-
zen. Larsen signed ship’s articles, written in Danish,
providing that the rights of crew members would be
governed by Danish law and by the employer’s con-
tract with the Danish Seamen’s Union, of which Lar-
sen was a member. He was negligently injured
aboard the Randa in the course of employment,
while in Havana harbor.5
I agree with the majority that the Death on the High Seas
Act controls, and that the doctrine of forum non conveniens
applies to Death on the High Seas Act claims. And I agree
that under Howard v. Crystal Cruises6 we are bound to apply
the Death on the High Seas Act even though Loya’s death
was not on what are commonly understood to be the “high
seas.” The failure of a passing vessel to rescue Loya falls
within the category of traditional maritime activity under
Taghadomi v. United States.7
Where we disagree is in the application of the doctrine of
forum non conveniens. I have not found precedent for so
aggressive an exclusion of an American plaintiff from Ameri-
can courts under the doctrine in any other case, and I think it
is mistaken here.
The Supreme Court decision in Piper Aircraft Co. v. Reyno.8
4
345 U.S. 571 (1953)
5
Lauritzen, 345 U.S. at 573.
6
41 F.3d 527 (9th Cir. 1994).
7
401 F.3d 1080 (9th Cir. 2005).
8
454 U.S. 235 (1981).
LOYA v. STARWOOD HOTELS & RESORTS 14269
gives us the necessary guidance. That Scottish air crash,
described above, was properly dismissed for forum non
conveniens, and the Court rejected the Third Circuit view that
more favorable law, alone, in the plaintiff’s choice of forum
was sufficient reason to deny forum non conveniens dismissal.
The decision reaffirmed, though, that the “plaintiff’s choice of
forum should rarely be disturbed.”9 The rule in Piper is that
forum non conveniens dismissal is appropriate only “when
trial in the chosen forum would ‘establish . . . oppressiveness
and vexation to a defendant . . . out of all proportion to plain-
tiff’s convenience,’ or when the ‘chosen forum [is] inappro-
priate because of considerations affecting the court’s own
administrative and legal problems.’ ”10 That stringent rule has
not been applied in this case. Piper read the Court’s earlier
decision in Gulf Oil Corp. v. Gilbert11 to mean that “dismissal
may be warranted where a plaintiff chooses a particular
forum, not because it is convenient, but solely in order to
harass the defendant or take advantage of favorable law.”12
Piper carefully qualified its rule that law more favorable to
the plaintiff is not a good ground automatically to deny forum
non conveniens dismissal. “[I]f the remedy provided by the
alternative forum is so clearly inadequate or unsatisfactory
that it is no remedy at all, the unfavorable change in law may
be given substantial weight; the district court may conclude
that dismissal would not be in the interests of justice.”13 That
is the case here. The Loya family has no practical Mexican
remedy. The papers set out that their remedy in Mexico would
be limited to damages of about $17,000, and that they would
be required to spend over $50,000 to secure that remedy.
9
Id. at 241.
10
Id. (quoting Koster v. Lumbermens Mut. Cas. Co., 330 U.S. 518, 524
(1947)).
11
330 U.S. 501 (1947).
12
Piper, 454 U.S. at 249 n.15.
13
Id. at 254.
14270 LOYA v. STARWOOD HOTELS & RESORTS
In addition to the impracticality of any remedy in Mexico,
the Loyas face an insuperable obstacle in proving their case
there. The decedent’s diving partner is unwilling to go to
Mexico again. That is plausible, considering the horrible
experience, and the deterrent of knowing that Mexican law
does not provide compensation if he dies there.
Our disagreement is limited to application of law to facts,
but that matters. Piper holds that there is no “rigid rule” gov-
erning discretion, just a multi-factor set of considerations, and
“each case turns on its facts.”14 The Loyas ought to be able to
sue in Washington—their and the decedent’s home—from
where they arranged their Mexican vacation with an Ameri-
can company and the Mexican companies it partnered with.
14
Id. at 249.