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 D.C. No.

Westin Hotel Company doing  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
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

14250 LOYA v. STARWOOD HOTELS & RESORTS
COUNSEL

Scott E. Stafne, Stafne Law Firm, Arlington, Washington,

(argued); Martin D. Fox, Martin D. Fox, Inc., Seattle, Washington, 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 Washington 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, relyLOYA v. STARWOOD HOTELS & RESORTS 14253
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 California 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 centers), 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.

1Starwood takes the lead on appeal, and we refer to all defendants collectively as “Starwood.” 

14254 LOYA v. STARWOOD HOTELS & RESORTS
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 conveniens is inapplicable because DOHSA provides the exclusive 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 jurisdiction 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 appropriate 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 precludes 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 doctrine to eliminate access by an American beneficiary to a remedy 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

2After 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. 

LOYA v. STARWOOD HOTELS & RESORTS 14255
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 pecuniary 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 decedents’ survivors brought suit against the American manufacturer. 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 jurisdiction was thus mandatory. The court of appeals held otherwise, 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

3Section 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

14256 LOYA v. STARWOOD HOTELS & RESORTS
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 American, 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 Dredging 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 conveniens 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 seaman, we reiterated our rule in Jones Act cases that a court

must first make a choice of law determination before dismissing 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 admiralty, 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 representative 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. 

LOYA v. STARWOOD HOTELS & RESORTS 14257
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) (holding 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

4We 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; allegiance of the shipowner; place and choice of law of the contract; inaccessibility 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 incorporates 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 commencing 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.”

14258 LOYA v. STARWOOD HOTELS & RESORTS
statute such as the Jones Act. We see no reversible error in its

conclusion that this action is amenable to discretionary dismissal, 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 conveniens 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 enjoinder 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 supervening venue provision” that goes to “process rather than substantive 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 district 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 conve6We 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 specific venue provision such as the Jones Act. See Zipfel, 832 F.2d at 1482.

7Prior 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

LOYA v. STARWOOD HOTELS & RESORTS 14259
niens doctrine does not expand the substantive law on wrongful 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 American 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 context 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 outside the territorial boundaries of the United States.” Id. at 529-

30. This does not mean that the doctrine of forum non conveniens 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 compensation 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. 

14260 LOYA v. STARWOOD HOTELS & RESORTS
[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 dismiss 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 discretion 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)); Creative 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 adequate 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. Evangelical Alliance Mission, 930 F.2d 764, 767 (9th Cir. 1991) (quoting 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 witnesses; (3) possibility of viewing subject premises; (4) all

other factors that render trial of the case expeditious and inexpensive. “ Creative Tech., 61 F.3d at 703 (quoting Zipfel, 832

F.2d at 1485). Public interest factors include “(1) administraLOYA v. STARWOOD HOTELS & RESORTS 14261
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 controversies 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 statute 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 formula 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 indicated 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 obtaining 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 liability witnesses and relevant documentation are located in Mexico.8

 In the trial court’s view, other factors did not favor either

side.

8These include employees of the Club Regina Los Cabos and of the

company that arranged the scuba diving trip; the person who drove

14262 LOYA v. STARWOOD HOTELS & RESORTS
[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 misrepresentations 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 Starwood 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 conflict, 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 Washington. A release may have been executed when Ricardo Loya signed up for

the trip. 

LOYA v. STARWOOD HOTELS & RESORTS 14263
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. However, 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; Lockman 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 investigated.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

9The 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. 

14264 LOYA v. STARWOOD HOTELS & RESORTS
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 legislated 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 conclusion that Baja California Sur was nevertheless a more convenient 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

LOYA v. STARWOOD HOTELS & RESORTS 14265
may apply to the applicable standard of care and interpretation 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 Mexico was a more convenient forum; the court simply indicated

that it favored Starwood.

[10] In sum, the trial court considered all the relevant factors 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.

10That 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. 

14266 LOYA v. STARWOOD HOTELS & RESORTS
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 factors 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 Mexico’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 timeshare 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.

1Ravelo Monegro v. Rosa, 211 F.3d 509, 514 (9th Cir. 2000). 

2Lauritzen v. Larsen, 345 U.S. 571 (1953). 

3

454 U.S. 235 (1981). 

LOYA v. STARWOOD HOTELS & RESORTS 14267
And in Lauritzen v. Larsen,

4

 every substantial connection to

the case except for the Cuban location of the injury was Danish, 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 citizen. 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 contract with the Danish Seamen’s Union, of which Larsen 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 American 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) 

5Lauritzen, 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). 

14268 LOYA v. STARWOOD HOTELS & RESORTS
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 plaintiff’s convenience,’ or when the ‘chosen forum [is] inappropriate 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. 

10Id. (quoting Koster v. Lumbermens Mut. Cas. Co., 330 U.S. 518, 524

(1947)). 

11330 U.S. 501 (1947). 

12Piper, 454 U.S. at 249 n.15. 

13Id. at 254. 

LOYA v. STARWOOD HOTELS & RESORTS 14269
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” governing 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 American company and the Mexican companies it partnered with.

14Id. at 249. 

14270 LOYA v. STARWOOD HOTELS & RESORTS