We review a district court decision dismissing claims resulting from the death of a foreign diver in an oil and gas related accident in foreign territorial waters. The district court based its decision to dismiss on Sec. 688(b) of the Jones Act and on the doctrine of forum non conveniens. The district court also refused to remand the case to the Texas state district court where Plaintiff originally filed it. Finding that the district court's actions were not an abuse of its discretion, we AFFIRM.

On February 22, 1984, Joao Lazaro Camejo ("Joao Camejo") died in a diving accident in Brazilian territorial waters. Joao Camejo, a Brazilian citizen and resident, was employed in Brazil, by a Brazilian entity, defendant Superpesa Transportes Maritimos, Ltd. ("Superpesa"), as a diver in connection with mineral exploration. At the time of his death, Joao Camejo was diving from a Panamanian flagged rig, the ZEPHYR II, drilling for the Brazilian national oil company, Petroleo Brasileiro, S.A. ("Petrobras").1

The plaintiff is Joao Camejo's widow, Shirlei Kirschner Camejo ("Shirlei Camejo"). Shirlei Camejo filed suit (1) individually, (2) as representative of the estate of Joao Camejo, and (3) as representative of their minor children. Shirlei Camejo and the minor children are Brazilian citizens and residents.

Shirlei Camejo originally named eight defendants. Only three remain. The federal district court dismissed defendant Petrobras, the Brazilian national oil company, pursuant to an agreement between Petrobras and Shirlei Camejo. Just before oral argument in this court, pursuant to an agreement between Shirlei Camejo and four of the defendants, this court dismissed those four defendants, Ocean Drilling & Exploration Company, Brasdril-Sociedade de Perfuracoes Ltda., ODECO International, Inc., and Norvald Steve Lekva.2

Two of the three remaining defendants are U.S. Divers Corp. ("U.S. Divers"), and Diving Systems International, Inc. ("Diving Systems"). U.S. Divers and Diving Systems, both United States corporations, allegedly designed and manufactured the diving helmet that Joao Camejo wore when he died. Diving Systems and U.S. Divers have no contact with Texas that has any relation to this suit; their only contact with Texas is that they have sold products to companies doing business in Texas. The third remaining defendant is Superpesa, Joao Camejo's employer. Superpesa never appeared in the district court or in this court.

Shirlei Camejo based her claims on (1) the general maritime law of the United States, (2) the Jones Act, 46 U.S.C. Sec. 688, and (3) Texas wrongful death and survival statutes. Shirlei Camejo originally filed suit in a state district court in Houston, Texas. Petrobras removed the suit to a federal district court in Houston, Texas on the basis of 28 U.S.C. Sec. 1441(d) and the Foreign Sovereign Immunities Act of 1976.3

After the district court dismissed Petrobras, Shirlei Camejo moved for remand to the state district court in Houston, Texas. The remaining defendants filed a motion to dismiss Shirlei Camejo's Jones Act claims under 46 U.S.C. Sec. 688(b), and to dismiss her remaining claims on the grounds of forum non conveniens. The district court, denying Shirlei Camejo's motion for remand, granted defendants' motions for dismissal subject to the conditions listed in the margin.4

In 1982 Congress amended the Jones Act by renumbering the existing Sec. 688 language Sec. 688(a) and adding the following language as Sec. 688(b):

(1) No action may be maintained under [the Jones Act] or under any other maritime law of the United States for maintenance and cure or for damages for the injury or death of a person who was not a citizen or permanent resident alien of the United States at the time of the incident giving rise to the action if the incident occurred--

(A) while that person was in the employ of an enterprise engaged in the exploration, development, or production of off-shore mineral or energy resources--including but not limited to drilling, mapping, surveying, diving, pipe-laying, maintaining, repairing, constructing, or transporting supplies, equipment or personnel, but not including transporting those resources by a vessel constructed or adapted primarily to carry oil in bulk in the cargo spaces; and

(B) in the territorial waters or waters overlaying the continental shelf of a nation other than the United States, its territories, or possessions. As used in this paragraph, the term "continental shelf" has the meaning stated in article I of the 1958 Convention on the Continental Shelf.

(2) The provisions of paragraph (1) of this subsection shall not be applicable if the person bringing the action establishes that no remedy was available to that person--

(A) under the laws of the nation asserting jurisdiction over the area in which the incident occurred; or

(B) under the laws of the nation in which, at the time of the incident, the person for whose injury or death a remedy is sought maintained citizenship or residency.5

Section 688(b) denies a Jones Act remedy and any other remedies under general maritime law to foreign seamen in the offshore drilling industry when they are injured in another country's territorial waters, unless neither the country where the injury occurred nor the seaman's home country provide any remedy. Because Congress also provided that Sec. 688(b) does "not apply to any action arising out of an incident that occurred before" December 29, 1982,6 few courts have applied or interpreted the new provision. Joao Camejo's death, however, occurred after December 29, 1982 and Sec. 688(b) applies to this case. The district court recognized the applicability of Sec. 688(b), but misinterpreted its import. The district court's ruled that:

As a preliminary matter, the Court would note that Plaintiffs' claims for relief under the Jones Act, 46 U.S.C. Secs. 688, et seq., must be dismissed. The incident which gives rise to this cause of action occurred after 1982, when Congress amended the Jones Act to exclude from its coverage certain aliens.

....

The pleadings make clear that Plaintiff's decedent was an alien employed by an enterprise engaged in the production of off-shore energy resources in territorial waters off of Brazil. Because Plaintiff has not shown that no remedy was available to her so as to fit this case within one of the exceptions to the Jones Act exclusion provision, she has failed to state a claim for relief under the Jones Act, and that portion of the case must be dismissed.

District Court Order, November 7, 1986, at 2. On appeal, neither party argues that the district court erred in dismissing Shirlei Camejo's Jones Act claims and we agree that this action was correct. The district court, however, failed to realize the full import of Sec. 688(b). The section does not just deny Shirlei Camejo, and similarly situated plaintiffs, relief under the Jones Act; the section also denies relief under "any other maritime law of the United States for maintenance and cure or for damages for ... injury or death." 46 U.S.C. Sec. 688(b). As a result Sec. 688(b) also denies Shirlei Camejo relief under the general maritime law of the United States.

III. DISTRICT COURT'S RETENTION OF JURISDICTION AFTER

Shirlei Camejo's counsel assert in their brief that the District Court erred because, after dismissing Petrobras, the district court refused to remand the case to the state district court where Shirlei Camejo originally brought it. This court, however, recently said in a similar case that "even if no federal admiralty claim remained in the case, the district court still retained pendent jurisdiction over the state claims" and could therefore dismiss the state claims under the doctrine of forum non conveniens.7 Because the decision to retain or remand remaining pendent claims after the dismissal of the foreign sovereign who removed the case is within the discretion of the district court8 we can only reverse the district court's decision to retain jurisdiction after the dismissal of the removing defendant, Petrobras, if that decision was a clear abuse of the district court's discretion. It was not.

1. The old law. For many years, in many admiralty cases, this court held that, before addressing the issue of forum non conveniens, the district court should decide whether American or foreign law applied.9 To determine the choice of law question the court used the eight factors set out by the Supreme Court in Lauritzen v. Larsen, 345 U.S. 571, 73 S. Ct. 921, 97 L. Ed. 1254 (1953), and Hellenic Lines Ltd. v. Rhoditis, 398 U.S. 306, 90 S. Ct. 1731, 26 L. Ed. 2d 252 (1970).10 This court also held that if American law applied the district court should generally retain jurisdiction and proceed with the case.11 On the other hand, this court held that, if the district court determined that foreign law applied then the district court should proceed to an analysis of the forum non conveniens factors set forth in Gulf Oil Corporation v. Gilbert, 330 U.S. 501, 67 S. Ct. 839, 91 L. Ed. 1055 (1947).12

In 1981, in Piper Aircraft Co. v. Reyno, 454 U.S. 235, 102 S. Ct. 252, 70 L. Ed. 2d 419 (1981), a products liability action under diversity jurisdiction, the Supreme Court held that a choice of law analysis is only tangentially relevant to the Gulf Oil forum non conveniens analysis and that a court need not perform a choice of law analysis before its forum non conveniens analysis.13 This court, however, had concluded that its two-prong admiralty forum non conveniens analysis was not inconsistent with the Piper Court's limitation of emphasis on choice of law and, along with two other circuits, continued to apply the two-prong test.14

2. The new law. On July 21, 1987, sitting en banc in a diversity case, this court, however, reversed course. In In re Air Crash Disaster Near New Orleans, Louisiana on July 9, 1982, 821 F.2d 1147 (5th Cir.1987), petition for cert. filed, (U.S. Nov. 6, 1987) (No. 87-750), this court held:

We also can discern no overriding justification for refusing to apply Reyno 's principles and this opinion's procedural rules to forum non conveniens issues in Jones Act and general maritime cases. We believe that a single and uniform approach to the analysis and application of the forum non conveniens doctrine best serves litigants and the courts. We therefore, expressly disapprove of and overrule our Jones Act and general maritime caselaw that utilizes a modified forum non conveniens analysis. Henceforth, all cases, including Jones Act and maritime actions, are governed by the dictates of Reyno and this opinion.

Id. at 1164 n. 25. Even though this court issued the Air Crash opinion after the district court decision in this case, we must apply the Air Crash holding as we consider this case.15 We note at the outset, however, that "[a]n appellate court may reverse the decision of a district court on a motion to dismiss on forum non conveniens only if it constituted a clear abuse of discretion."16 "Simply stated, our duty as an appellate court in reviewing forum non conveniens decisions is to review the lower court's decisionmaking process and conclusion and determine if it is reasonable; our duty is not to perform a de novo analysis and make the initial determination for the district court." Air Crash, 821 F.2d at 1167.

3. Burden of proof. In Air Crash this court said:

A defendant of course bears the burden of invoking the doctrine and moving to dismiss in favor of a foreign forum.

821 F.2d at 1164 (citations omitted). The defendants here clearly met this burden. Rec. Vol. I at 34-80. The Air Crash court continued:

This burden of persuasion runs to all the elements of the forum non conveniens analysis. Therefore, the moving defendant must establish that an adequate and available forum exists as to all defendants if there are several. If the moving defendant carries this initial burden, it must also establish that the private and public interests weigh heavily on the side of trial in the foreign forum. The Supreme Court has held that a moving defendant need not submit overly detailed affidavits to carry its burden, but it "must provide enough information to enable the district court to balance the parties['] interests."17 Reyno, 454 U.S. at 258, 102 S.Ct. at 267.

821 F.2d at 1164-65 (footnote in original). The defendants submitted detailed motions for dismissal on the grounds of forum non conveniens to the district court. See Rec. Vol. I at 34-80. The defendants' motions discussed the relevant facts and applied the Gulf Oil factors to these facts. Shirlei Camejo did not submit any pleadings, motions or memoranda of law that controverted any of the defendants' statements regarding the forum non conveniens issue. As a result none of the relevant facts alleged by the defendants in their forum non conveniens motions are in controversy. We therefore conclude that, if these uncontroverted facts are sufficient to support the district court's forum non conveniens decision, the defendant has met his burden of persuasion.

4. Adequate, available foreign forum. In Air Crash this court said:

The district court must first decide whether an available and adequate foreign forum exists. This is a two-part inquiry: availability and adequacy. A foreign forum is available when the entire case and all parties can come within the jurisdiction of that forum.... A foreign forum is adequate when the parties will not be deprived of all remedies or treated unfairly, Reyno, 454 U.S. at 255, 102 S.Ct. at 265, even though they may not enjoy the same benefits as they might receive in an American court....

821 F.2d at 1165. In this case the district court found that Plaintiff Shirlei Camejo did not dispute the existence of an adequate alternative forum.

5. Forum non conveniens factors. We now proceed to review the federal district court's balancing of the public and private convenience factors that the Supreme Court set forth in Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 67 S. Ct. 839, 91 L. Ed. 1055 (1947).

The Gulf Oil opinion listed the following private interest factors:

Important considerations are the relative ease of access to sources of proof; availability of compulsory process for attendance of unwilling, and the cost of obtaining attendance of willing, witnesses; possibility of view of premises, if view would be appropriate to the action; and all other practical problems that make trial of a case easy, expeditious and inexpensive. There may also be questions as to the enforceability of a judgment if one is obtained. The court will weigh relative advantages and obstacles to a fair trial.

330 U.S. at 508, 67 S. Ct. at 843. The Gulf Oil opinion also listed the following public interest factors:

Administrative difficulties follow for courts when litigation is piled up in congested centers instead of being handled at its origin. Jury duty is a burden that ought not to be imposed upon the people of a community which has no relation to the litigation. In cases which touch the affairs of many persons, there is reason for holding the trial in their view and reach rather than in remote parts of the country where they can learn of it by report only. There is a local interest in having localized controversies decided at home.

330 U.S. at 508-09, 67 S. Ct. at 843. The absence of the actual employer in this jurisdiction and the greater interest of Brazil in deciding a controversy involving one of its citizens are significant factors which support the district court's action, as they did in Piper, especially since Shirlei Camejo has not demonstrated any connection at all with Texas. Compulsory process for Brazilian witnesses is unavailable in a Texas forum. The cost of bringing Brazilian witnesses to Houston is very high. All the information regarding the Plaintiff's damages is in Brazil. The rig was and still is in Brazil. The local interest of Brazil in determining a case involving the death of one of its citizens is great; Texas courts have no comparable interest in the case.

Although Gulf Oil counsels that courts should not disturb the plaintiff's choice of forum unless the balance strongly favors the defendants, 330 U.S. at 508, 67 S. Ct. at 843, Piper held that a foreign plaintiff's choice deserves less deference. 454 U.S. at 267, 102 S.Ct. at 266. In this case the balance so strongly favors the defendant that we have no trouble in concluding that the district court did not abuse its discretion in declining to exercise its jurisdiction to decide the remaining pendent state claims.

Shirlei Camejo argues that even if the federal district court correctly refused to remand immediately after dismissing Petrobras and even if it correctly concluded that it was an inconvenient forum, the federal district court should have remanded the case to the state district court where she originally filed it instead of dismissing the case. Shirlei Camejo made a Texas wrongful death claim based on Texas' long-standing "open forum" statute. We therefore review this statute and its potential application to this case. The Texas "open forum" statute is currently codified at Tex.Civ.Prac. & Rem.Code Ann. Sec. 71.031 (Vernon 1986).18 Section 71.031 provides that:

(a) An action for damages for the death or personal injury of a citizen of this state, of the United States, or of a foreign country may be enforced in the courts of this state, although the wrongful act, neglect, or default causing the death or injury takes place in a foreign state or country, if:

(1) a law of the foreign state or country or of this state gives a right to maintain an action for damages for the death or injury;

(2) the action is begun in this state within the time provided by the laws of this state for beginning the action: and

(3) in the case of a citizen of a foreign country, the country has equal treaty rights with the United States on behalf of its citizens.

(b) All matters pertaining to procedure in the prosecution or maintenance of the action in the courts of this state are governed by the law of this state.

(c) The court shall apply the rules of substantive law that are appropriate under the facts of the case.

The federal district court found that the two year statute of limitations for a Texas wrongful death action19 expired before Shirlei Camejo filed her claim. On this basis, after its forum non conveniens determination, the federal district court declined to exercise its discretion to remand the case to the Texas district court. The federal district court's time bar conclusion was based on the defendants' uncontroverted representation that Joao Camejo died on February 23, 1983. He apparently actually died on February 22, 1984. Since Shirlei Camejo filed her action on February 21, 1986 the Texas wrongful death action was apparently not time barred and we cannot affirm the district court's decision not to remand on that basis.20

The Texas Supreme Court has hinted in an admiralty case that it may view Sec. 71.031 as precluding a forum non conveniens analysis in a personal injury or wrongful death case filed in a Texas state court.21 This court, however, recently held in Exxon Corp. v. Chick Kam Choo, 817 F.2d 307 (5th Cir.), cert. granted, --- U.S. ----, 108 S. Ct. 343, 98 L. Ed. 2d 369 (1987), that "state courts must apply the forum non conveniens rule of the general maritime law in any case brought before them by citizens of foreign lands over which the federal courts would have admiralty jurisdiction. State law inconsistent with that doctrine cannot be applied in a maritime case."22 The Chick Kam Choo opinion also held that Sec. 71.031 is a state law inconsistent with the doctrine of forum non conveniens.23

The Texas state court where the action was originally filed is located in Houston, the same city as the federal district court that made the original forum non conveniens analysis. The Plaintiff also fails to allege any factors that would require a change in the result of the forum non conveniens analysis in the state court. Under Chick Kam Choo, which is the current precedent on point in this circuit, we therefore conclude that the district court did not abuse its discretion by deciding not to remand the case to the Texas state court.

AFFIRMED.