Before LUMBARD, Chief Judge, and MOORE and FRIENDLY, Circuit Judges.
Conte, an Argentine seaman, and Flota Mercante del Estado, an Argentine corporation, owner of the S.S. Rio de la Plata, both appeal from a judgment in a suit in admiralty brought by Conte in the Southern District of New York against the vessel and her owner, 28 U.S.C. § 1333. The libel sought damages for personal injuries sustained by Conte while serving aboard the vessel, and wages and penalty wages under 46 U.S.C.A. § 596. Respondent urges that the District Court abused its discretion in retaining the suit rather than remitting libelant to his remedies in Argentina and that the District Judge's finding that libelant was free from contributory negligence was clearly erroneous; in these respects we affirm. We likewise affirm the denial of penalty wages. Respondent asserts the award of damages for the injury was excessive; libelant claims it was insufficient. Finding merit in certain contentions raised by each appellant but being unable to arrive at a correct award on the present record, we remand the case to the District Court for redetermination of such damages.
Conte, a citizen of Argentina, signed articles on August 7, 1957, in Buenos Aires, for a voyage to New York and return on the Rio de la Plata, as a mechanic-plumber. On August 29, when the vessel was two days from New York, he suffered a serious injury under the circumstances we shall now describe. On inspecting the fresh water pump Conte found the oil was low. He notified the Third Engineer, Solano. The two men proceeded to check the pump. This contained two pistons operating up and down from a crankshaft. Solano first checked the forward piston by inserting a wire in an oil hole; he found this was clear. In order to permit a similar check of the after piston Solano went to the control board and turned on the motor that would raise the after and lower the forward piston. While Solano was doing this, Conte inserted his hand in the pump housing. The forward piston fell and amputated Conte's right hand up to the wrist, leaving only the thumb.After immediate treatment on the vessel, Conte underwent repeated surgery in New York. This culminated in the fusing of his thumb on the wristbone so that he could be fitted with a prosthetic hand. Although this will assist Conte in taking care of himself, the hand is useless for manual labor.
The libel, filed on December 31, 1957, sought recovery for the injury, based on negligence, breach of the shipowner's warranty of seaworthiness and failure to afford maintenance and cure. A fourth claim for relief alleged that respondent had failed to pay libelant his wages to the end of the voyage and sought damages of $25,000. There was no reference to the penalty wage statute, 46 U.S.C.A. § 596. However, on libelant's examination before trial, libelant's counsel stated that such a claim was being made and the libel was treated at the trial as including this. Certain pretrial steps were taken and a note of issue and statement of readiness was filed in May, 1958.
After further pretrial proceedings, respondent moved, in December, 1958, to dismiss the libel on the ground of forum non conveniens in that the suit was between Argentine citizens, arose out of injuries sustained on an Argentine ship on the high seas and was governed by Argentine law. Judge McGohey, in a brief opinion, Conte v. Rio De La Plata, D.C.1959, 169 F.Supp. 164, denied the motion, as did Judge Dimock when it was renewed at the trial. Judge McGohey rested his denial on the presence in New York of doctors and technicians who were essential witnesses, on the ready availability of the eye-witnesses to the accident and the master and other officers of the vessel since they were still employed by respondent whose ships made regular runs to New York, on respondent's unexplained delay in waiting until the eve of trial before moving to dismiss, and on the existence of the penalty wage claim.*fn1
Respondent concedes as it must that its objection does not go to the jurisdiction of the District Court, The Belgenland, 1885, 114 U.S. 355, 5 S. Ct. 860, 29 L. Ed. 152; Lauritzen v. Larsen, 1953, 345 U.S. 571, 575, 589-590, 73 S. Ct. 921, 97 L. Ed. 1254, but only to whether the District Court abused its discretion in retaining this. The question raised is an important one, as to which an able commentator chides us, "No rules to guide discretion have been formulated, and the cases, although the better ones point to and assist in the definition of standards, have not been lacking in confusion." Bickel, Forum Non-Conveniens in Admiralty, 35 Cornell L.Q. 12, 27 (1949). It is prima facie undesirable that an overburdened District Court should conduct a trial in personal injury action between foreigners, with all the evidence on the issue of liability and much of the evidence on damages given in a foreign tongue by witnesses equally or more available in the foreign forum, and with reliance having to be placed on expert testimony as to the governing law, when, as here, an adequate remedy is available in the country where both parties reside and to which the plaintiff will return. Moreover, try as we may to apply the foreign law as it comes to us through the lips of the experts, there is an inevitable hazard that, in those areas, perhaps interstitial but far from inconsequential, where we have no clear guides, our labors, moulded by our own habits of mind as they necessarily must be, may produce a result whose conformity with that of the foreign court may be greater in theory than it is in fact. See Mr. Justice Holmes in Diaz v. Gonzalez, 1923, 261 U.S. 102, 105, 43 S. Ct. 286, 67 L. Ed. 550. Indeed, we fear we may have exactly such a case in the award of damages here. The testimony of the New York surgeon and technician was not controversial and could easily have been taken by deposition; indeed, libelant's own appearance was the best proof of the gravity and permanence of his injury. Neither do we see any flaw in respondent's contention that the District Court might have retained jurisdiction of the wage claim while dismissing the personal injury claim, as was done in Giatilis v. Steam Tanker Darnie, D.C.D.Md.1959, 171 F.Supp. 751, 1959 A.M.C. 1248. However, respondent presented no explanation of its failure to move for dismissal until libelant had expended both time and money and the suit was about to be tried. We therefore cannot now find the retention of jurisdiction to have been an abuse of discretion, although we assuredly would not have found a dismissal of the personal injury claim to be.
At the trial libelant withdrew his claim for maintenance and cure. Judge Dimock found respondent had been negligent and libelant had not been. Initially he awarded libelant $60,000 for loss of earning power plus hospital and medical bills, the cost of the present and future prosthetic hands and gloves and, apparently, a small item for accrued wages. He declined to make an allowance for the cost of the cosmetic hand and glove with which libelant had also been fitted, for "mutilation," or for counsel fees, and he denied the penalty wage claim. The attention of the trial judge having been drawn to this Court's decision in Alexander v. Nash-Kelvinator Corp., 1958, 261 F.2d 187, 191, requiring that a judge to whom a personal injury case has been tried shall make findings as to the elements of damage sufficient so that "on the appeal the appellate court should have some knowledge of the basis or theory upon which the trial judge acted," he reduced the $60,000 allowance for loss of earnings to $43,444 and explained orally how he reached that figure.*fn2
It is agreed that the rights of the parties are governed by Argentine law. American Law Institute, Restatement of the Conflict of Laws, § 405. Article 1109 of the Argentine Civil Code provides that "Every person who carries out a deed which because of his fault or negligence, inflicts damage on another, is bound to repair the damage." Article 1111 says that when a person suffers damage only because of his own fault he has no right to recover. Respondent's expert testified that the Argentine courts, "reasoning with these two articles," have decided that when both parties have been negligent, the injured party "can recover reduced damages in the proportion of his own fault."
Respondent does not contend the District Judge's finding of negligence was clearly erroneous. However, it asks us under that standard to reverse the judge's finding that Conte was not negligent, since, as it claims, his manual exploration of the inside of the pump housing could accomplish nothing. That may be, but libelant was not an expert engineer and we cannot hold that the District Judge, who heard Conte and Solano, was clearly in error in finding Conte free from negligence.
We come therefore to the amount of damages for the injury. This, as in the case of liability, must be determined in accordance with Argentine law. American Law Institute, Restatement of the Conflict of Laws, § 412.
A. Loss of Earning Power.
The element of damage which is largest in amount and most controversial is Conte's loss of earning power. Respondent's expert conceded that, under the Argentine Civil Code, Conte was entitled "to collect all his future earnings that he will be deprived of as a result of this injury." He gave no testimony as to how the Argentine courts would make this determination. Failing this, we must make the assumption, fictitious though respondent claims it to be, that they would approach the issue as we would. We agree with a number of criticisms of the District Judge's computation made by each of the appellants. While we would have power to make the recomputation ourselves, the record does not give us the tools. We shall therefore indicate what we conceive to be the proper method and remand the case, with leave to the parties to introduce such further evidence on the subject as they are advised. The propriety of taking that course on an appeal in admiralty is sustained by such cases as Boston Insurance Co. v. City of New York, 2 Cir., 1942, 130 F.2d 156; The Innerton, 5 Cir., 1944, 141 F.2d 931, 933; Smith v. Acadia Overseas Freighters Ltd., 3 Cir., 1953, 202 F.2d 141; and Dixon v. United States, 2 Cir., 1955, 219 F.2d 10, 18.
The general principle is easily stated. The objective is to place the libelant in the same economic position as would have been his if the injury had not occurred. We seek to accomplish this goal by a formula which, stated in an oversimplified form, consists of determining what libelant's annual earning power would have been but for the injury, deducting what it will be thereafter, multiplying the result by libelant's expectancy, and discounting the product to present value. We recognize the delusive exactness of all this since, among other defects, life expectancies are averages and the formula assumes what we know to be usually contrary to the fact, namely, that the injured party will be fully ...