Petition for Writ of Mandamus Conditionally Granted and Opinion filed January 

31, 2012.

In The

 

Fourteenth Court of Appeals 

NO. 14-11-00923-CV

IN RE: BPZ RESOURCES, INC AND BPZ ENERGY, INC, Relators

ORIGINAL PROCEEDING

WRIT OF MANDAMUS

152nd District Court

Harris County, Texas

Trial Court Cause No. 2008-74654

O P I N I O N

On October 21, 2011, relators BPZ Resources, Inc and BPZ Energy, Inc. filed a 

petition for writ of mandamus in this court. See Tex. Gov‘t Code Ann. §22.221; see also 

Tex. R. App. P. 52. In the petition, relators ask this court to compel the Honorable 

Robert Schaffer, presiding judge of the 152nd District Court of Harris County to vacate 

his order denying their motion to dismiss based on forum non conveniens. We 

conditionally grant the petition.
2

I. Background

On January 30, 2008, a Peruvian-flagged oil tanker named the ―B.A.P. Supe‖ 

(―Supe‖) exploded and sank in the waters off the coast of Peru. At the time it sank, the 

Supe was moored near a crude oil production platform named the CX-11. Two crewmen 

died from injuries as a result of the explosion and several more were injured. BPZ 

Exploracion y Produccion (―BPZ Peru‖), a Peruvian company, owns the platform CX-11. 

Relator BPZ Energy, a Texas company, is the parent company of BPZ Exploracion y 

Produccion; relator BPZ Resources, Inc., a Texas company, is the parent company of 

BPZ Energy. Tecnomarine, a Peruvian company, provided the offshore support vessels

and crew vessels and contracted with the Peruvian Navy to charter the Supe. On 

December 18, 2008, several of the crewmembers and their family members (real parties 

in interest) sued relators in the 152nd District Court in Harris County for injuries arising 

from the sinking of the Supe. 

It is undisputed that a leak of crude oil on board the Supe caused the explosion. 

The Harbor Master in Peru appointed an independent expert to investigate the accident. 

According to the expert‘s report, the ―wells which were producing crude oil were 

required to deliver a certain quantity of product each day to avoid being closed, and for 

this reason product was discharged from the wellheads . . . to the calibration tank located 

on the second level of the platform. In turn, from the calibration tank of the CX-11 

platform, crude oil . . . was intermittently pumped to the BAP Supe 24 hours per day.‖1 

On the night before the explosion, crew members noticed that the center hold of 

the Supe, which was not designed to store oil, had become flooded with crude oil. 

According to the independent expert, after inspecting the flooded center hold, a decision 

was made to ―open the cargo hatch cover of the compartment and install air extractors to 

 

1 All quotations from the expert‘s report are from a translation of the report from Spanish into English. The 

report is in Spanish.
3

remove petroleum vapor in order to clear the compartment and remove the petroleum 

spilled inside.‖ After sunrise the next day, the petroleum that had spilled into the center 

hold began to heat up, reaching a temperature higher than 35 degrees Celsius (95 degrees 

Farenheit). The expert concluded that the heating of the petroleum created ―an 

atmosphere saturated with petroleum vapor.‖ The expert stated that ―[w]hen the main 

cover of the center hold was removed, air entered through the upper section of the 

compartment, mixing with the petroleum vapor, resulting in an explosive atmosphere 

inside the compartment.‖ The expert concluded that the initial cause of the accident was

―Breakage of the seal rings of the expansion joint of the commercial pipes of starboard 

tank No. 3 located inside the center hold of the ship before the access control valve of the 

pipes of the [starboard tank No. 3].‖ According to the expert, the causes of the fire were 

(1) the flooding of the center hold with crude oil, (2) formation of oil vapors due to the 

temperature of the crude oil being higher than the environmental temperature, and (3) 

entry of air into the center hold when the main hatch cover was opened, permitting sparks 

from the hydraulic arm motor to ignite the petroleum vapors.

On December 18, 2008, real parties, all residents of Peru, filed suit against BPZ 

Resources, Inc. and BPZ Energy, Inc. in Harris County for negligence in the explosion of 

the Supe. On May 19, 2009, relators filed a motion to dismiss on the basis of forum non 

conveniens. In their live petition, the real parties assert various personal injury and 

wrongful death claims against the relators. Alleging that the relators own the Supe, the 

real parties seek damages under general maritime law based upon the alleged 

unseaworthiness of the Supe. The real parties also assert negligence claims, including 

wrongful death and survival claims, based upon the alleged negligence of the relators. 

Relators allege the suit arose out of an incident that occurred within the territorial waters 

of Peru on a Peruvian Navy tankship, was brought by residents of Peru, and Peruvian law 

will apply. Relators further allege that four proceedings, both criminal and civil, arising 

from the incident, have either concluded or are on-going in Peru. They further cite the 
4

inconvenience of the parties in traveling to Texas and the inability to subject unwilling 

witnesses to subpoena in Texas as reasons for dismissal of the Texas suit.

Real parties responded to relators‘ motion, arguing that they will ensure that all 

Peruvian witnesses have the means and ability to travel to Houston. They also assured 

the court that all documents will be translated from Spanish to English. Real parties 

argued that Peru is not an adequate alternative forum and that the acts of corporate 

officers in Texas caused the explosion in Peru. Real parties further argue that decisions 

made by corporate officers domiciled in Houston led to the accident. Real parties‘ theory 

of the case revolves around decisions made in Houston to step up production on the CX11 platform. Real parties allege that relators made decisions to step up production, which 

required storage of more oil on the Supe than it was equipped to handle. Real parties 

allege relators did so despite evidence that the Supe was too old and ill-maintained to 

handle the extra load. They allege this is the true cause of the explosion.

The trial court denied relators‘ motion to dismiss. At the conclusion of the 

hearing, the attorney for the real parties asked the trial court if it would like proposed 

findings of fact and conclusions of law. The court stated it did not necessarily want 

proposed findings, but left the decision to the parties whether they wanted to submit 

proposed findings and conclusions. The mandamus record does not contain findings of 

fact and conclusions of law. Relators filed this original proceeding seeking mandamus 

relief, asserting the trial court abused its discretion because proper application of the 

forum non conveniens statute requires dismissal.

II. Mandamus Standard

An appeal is not an adequate remedy when a motion to dismiss for forum non 

conveniens grounds is erroneously denied, so mandamus relief is available if it is 

otherwise warranted. In re Gen. Elec. Co., 271 S.W.3d 681, 685 (Tex. 2008). We review 

a trial court‘s refusal to dismiss on forum non conveniens grounds for abuse of discretion. 
5

Id. A trial court abuses its discretion if it acts arbitrarily, unreasonably, or without 

reference to any guiding principles. Id. 

Waiver

In their response, real parties raise a waiver issue and claim that the petition 

should be denied because relators‘ motion was not timely filed. The real parties assert 

that under Rule 86 of the Rules of Civil Procedure, the relators were required to file their

motion to dismiss based on forum non conveniens with or before the filing of the 

relators‘ answer. But a motion to dismiss based on forum non conveniens is not a motion 

to transfer venue under Rule 86. See Tex. R. Civ. P. 86. Section 71.051(d) governs the 

timeliness of the relator‘s motion to dismiss based on forum non conveniens. See Tex. 

Civ. Prac. & Rem. Code Ann. 71.051 (West 2011). Under this statute, the relators had to 

file their motion to dismiss ―not later than 180 days after the time required for filing a 

motion to transfer venue of the claim or action.‖ Id. Rule 86 of the Rules of Civil 

Procedure requires filing of a motion to transfer venue ―prior to or concurrently with any 

other plea, pleading or motion[.]‖See Tex. R. Civ. P. 86. Relators filed their original 

answer on February 2, 2009, and their motion to dismiss on May 19, 2009, well within 

the 180-day time limit. Therefore, relators‘ motion was timely, and relators have not 

waived their claim of forum non conveniens.

II. Forum Non Conveniens

Section 71.051 of the Texas Civil Practice and Remedies Code governs the 

dismissal of a claim or action under the doctrine of forum non conveniens in personalinjury or wrongful-death cases filed in Texas courts.2

 In deciding whether ―in the interest 

of justice‖ and ―for the convenience of the parties‖ a claim or action would be more 

properly heard in another forum, the trial court must consider the six factors set forth in 

 

2 Unless otherwise specified, all statutory references in this opinion are to the Texas Civil Practice and 

Remedies Code.
6

section 71.051(b), to the extent these factors apply.3 See In re General Elec. Co., 271 

S.W.3d at 685–87. 

Section 71.051(b) provides:

If a court of this state, on written motion of a party, finds that in the interest of 

justice and for the convenience of the parties a claim or action to which this 

section applies would be more properly heard in a forum outside this state, the 

court shall decline to exercise jurisdiction under the doctrine of forum non 

conveniens and shall stay or dismiss the claim or action. In determining 

whether to grant a motion to stay or dismiss an action under the doctrine of 

forum non conveniens, the court shall consider whether:

(1) an alternate forum exists in which the claim or action may be tried;

(2) the alternate forum provides an adequate remedy;

(3) maintenance of the claim or action in the courts of this state would work a 

substantial injustice to the moving party;

(4) the alternate forum, as a result of the submission of the parties or otherwise, 

can exercise jurisdiction over all the defendants properly joined to the plaintiff's 

claim;

(5) the balance of the private interests of the parties and the public interest of 

the state predominate in favor of the claim or action being brought in an 

alternate forum, which shall include consideration of the extent to which an 

injury or death resulted from acts or omissions that occurred in this state; and

(6) the stay or dismissal would not result in unreasonable duplication or 

proliferation of litigation.

Tex. Civ. Prac. & Rem. Code § 71.051(b). 

 

3 Even though real parties have asserted claims under general maritime law, Texas law still applies as to 

issues of forum non conveniens regarding these maritime claims. See American Dredging Co. v. Miller, 510 

U.S. 443, 453–54, 114 S. Ct. 981, 988, 127 L. Ed. 2d 285 (1994); In re GlobalSantaFe Corp., 275 S.W.3d 477, 

485 (Tex. 2008).
7

A. Adequate Alternate Forum; §71.051(b)(1) & (2)

The first two factors in section 71.051(b) are: (1) whether an alternate forum exists 

where the claim may be tried, and (2) whether the alternate forum provides an adequate 

remedy. See Tex. Civ. Prac. & Rem. Code § 71.051(b). Relators assert that Peru is an 

adequate alternate forum as required by these factors. 

1. Existence of Alternate Forum Where Claims May be Tried 

Relators admit they are not subject to personal jurisdiction in Peru, but agree, for 

purposes of this suit only, that they will submit to specific personal jurisdiction in Peru. 

Real parties assert that the courts of Peru will not exercise jurisdiction over this case 

because the case was first filed in another jurisdiction. Based upon an affidavit submitted 

at the hearing on the motion to dismiss, real parties argue that the Bustamante Code, 

which Peru follows,4establishes that the Texas court has exclusive jurisdiction over this 

case to the exclusion of all others, and that Peru will not accept jurisdiction. 

Relators assert that if the dismissal is granted, it can be made contingent on the 

Peruvian court accepting jurisdiction. See id. § 71.051(c). We conclude that Peru is an 

alternate forum in which this action may be tried based upon relators‘ agreement to 

submit to personal jurisdiction in Peru and as long as any dismissal order is made 

contingent on the Peruvian court accepting jurisdiction and provides for jurisdiction in 

Texas in the event Peru declines jurisdiction. See Torres v. Southern Peru Copper Corp.

965 F.Supp. 899, 902–03 (S.D. Tex. 1996), aff’d Torres v. Southern Peru Copper Corp., 

113 F.3d 540, 544 (5th Cir. 1997). We conclude that the first statutory factor weighs in 

favor of granting the relators‘ motion to dismiss based on forum non conveniens.

 

4 Relators assert that the Bustamante Code does not apply to the case under review because the 

United States is not a signatory to the Bustamante Code and because that code states that it only applies 

between countries which are signatories to the Bustamante Code.
8

2. Adequate Remedy in Alternate Forum

An alternate forum does not provide an adequate remedy if the remedies it offers 

are so unsatisfactory they comprise no remedy at all. Gen. Elec., 271 S.W.3d at 688. 

Real parties claim the Peruvian courts are inadequate because:

The Peruvian Code of Civil Procedure limits parties to a maximum of 

three witnesses for each controversial fact and six in total. 

The Code further prevents any person having an interest in the case 

from being a witness.

Peru is unsafe due to political unrest. 

The Peruvian judicial system is corrupt.

There is no compulsory process in the Peruvian legal system, nor are 

depositions permitted.

Relators allege that the Peruvian courts provide adequate remedies in tort causes 

of action. They contend the Peruvian courts recognize a cause of action based on 

negligence and, in the case of death, dependents of the victim have the right to sue for 

damages. 

The Texas Supreme Court has determined that a comparative analysis of 

procedures, rights, and remedies available in different forums is generally not appropriate

in forum non conveniens analyses. In re Ensco Offshore Int’l Co., 311 S.W.3d 921, 924 

(Tex. 2010). Such a comparative analysis is relevant to a court‘s forum non conveniens 

decision only if a potential transfer would effectively result in no available remedy at all. 

Id; Gen. Elec., 271 S.W.3d at 688. See also Piper Aircraft Co. v. Reyno, 454 U.S. 235, 

254 (1981). If the remedy provided by the alternative forum ―is so clearly inadequate or 

unsatisfactory that it is no remedy at all,‖ the court ―may conclude that dismissal would 

not be in the interests of justice.‖ Piper Aircraft Co. v. Reyno, 454 U.S. at 254. In this 

case, both real parties and relators filed competing affidavits in support of their 
9

arguments over the adequacy or inadequacy of Peru as an alternate forum. Relators cite 

several cases in which federal courts have found Peru is an adequate alternate forum. See 

Torres v. Southern Peru Copper Corp., 965 F.Supp. 899, 902–03 (S.D. Tex. 1996), aff’d, 

113 F.3d 540 (5th Cir. 1997); Gonzalez v. Naviera Neptuno A.A., 832 F.2d 876, 877 (5th 

Cir. 1987); Diaz v. Humboldt, 722 F.2d 1216, 1219 (5th Cir. 1984). 

Real parties argue the corruption of the Peruvian judicial system essentially 

deprives them of all remedies and makes Peru an inadequate alternative forum. They 

further argue that the state of political unrest in Peru also causes Peru to be an inadequate 

forum. The corruption argument will be addressed under this factor, but the issue of 

political unrest is best addressed as part of the balancing of public and private factors in 

favor of one forum over another. See, e.g., Guidi v. Inter–Continental Hotels Corp., 224 

F.3d 142, 145–48 (2d Cir. 2000) (plaintiffs‘ safety concerns should be considered as part 

of the weighing of conveniences); Iragorri v. International Elevator, Inc., 203 F.3d 8, 13 

(1st Cir. 2000) (safety concerns might better relate to balancing of interests).

In arguing that the Peruvian judicial system is so corrupt as to effectively provide 

them with no remedy at all, real parties presented evidence that in 2008, the U.S. State 

Department reported ―Peru has an independent judiciary that theoretically enables 

citizens to bring lawsuits for violations of their rights; however, court cases have often 

dragged on for years, making it difficult for some plaintiffs, particularly those of limited 

economic means, to pursue legal redress.‖ 

To defeat a forum non conveniens motion, plaintiffs must show more than general 

allegations of corruption, lack of due process or other factors making an alternative forum 

unsuitable. For example, in Rasoulzadeh v. Associated Press 574 F.Supp. 854, 861

(S.D.N.Y. 1983), the court held that an alternative forum in Iran was not adequate

because the courts there were administered by Iranian mullahs and the plaintiffs ―would 

probably be shot‖ if they returned to Iran. In Phoenix Canada Oil Co. Ltd. v. Texaco, 

Inc., 78 F.R.D. 445, 455 (D. Del. 1978), the court found that Ecuador was not an 
10

adequate forum since it did not have an independent judiciary. Courts controlled by a 

military junta in Chile were likewise found inadequate. Canada Overseas Ores Ltd. v. 

Compania, 528 F.Supp. 1337, 1342 (S.D.N.Y. 1982).

In Eastman Kodak Co. v. Kavlin, 978 F.Supp. 1078 (S.D. Fla. 1997), the court 

addressed whether corruption in Bolivian courts precluded application of forum non 

conveniens to allow trial of the matter in Bolivia. The court noted that ―the  ̳alternative 

forum is too corrupt to be adequate‘ argument does not enjoy a particularly impressive 

track record.‖ Id. at 1084. In that case, however, plaintiffs not only presented evidence 

of corruption but also alleged that the defendant was ―well-connected and ha[d] already 

used the criminal justice system to extort a commercial settlement from‖ one plaintiff, as 

well as to obtain criminal convictions of the plaintiff‘s employees. Id. at 1086. In that 

case, the court found that Bolivia was not an adequate alternative forum. Id. at 1087.

Other courts have rejected allegations of corruption or bias of a foreign forum as a 

means of preventing a forum non conveniens dismissal. See, e.g. Blanco v. Banco Indus. 

de Venezuela, S.A., 997 F.2d 974, 981 (2nd Cir.1993) (determining that, despite 

allegations of corruption, Venezuelan court was an adequate alternative forum); Mercier 

v. Sheraton Int’l, Inc., 981 F.2d 1345, 1351 (1st Cir.1992) (deciding that Turkey was an 

adequate forum despite plaintiff‘s claim that Turkish courts were extremely biased 

against Americans and foreign women); Stalinski v. Bakoczy, 41 F.Supp.2d 755, 759

(S.D. Ohio 1998) (finding Honduras to be an adequate forum despite plaintiff‘s evidence 

of corruption in the court system there); Torres, 965 F.Supp. at 903 (determining that 

Peruvian judicial system was not so corrupt as to render Peru an inadequate forum).

In this case, real parties have not presented evidence that the Peruvian judicial 

system is so corrupt as to effectively provide them with no remedy at all. Therefore, a 

comparative analysis of the procedures, rights, and remedies available in Peru and Texas 

is not appropriate. See In re Ensco Offshore Int’l Co., 311 S.W.3d at 924; Gen. Elec., 
11

271 S.W.3d at 688. We conclude that the second statutory factor weighs in favor of 

granting the relators‘ motion to dismiss based on forum non conveniens.

B. Substantial Injustice to Relators; § 71.051(b)(3)

Relators assert that maintaining this suit in Texas will work a substantial injustice 

to them because it requires them to defend tort claims in Texas that arose in Peru. They 

point to the fact that most of the witnesses including the members of the crew of the Supe 

are residents of Peru and outside the subpoena power of a Texas court. Relators further 

emphasize that evidence regarding the accident has already been fully developed in the 

criminal action against the Supe captain. Relators presented evidence that the Harbor 

Master and the Peruvian Attorney General conducted investigations of the accident. 

Real parties respond to relators‘ argument by asserting that it is not inconvenient 

for relators to defend this suit in their home jurisdiction. The witnesses necessary to 

prove how the operations of the platform were handled are located in Texas, the daily 

communications that authorized the operations came from Texas, Houston employees 

investigated the incident, and Houston companies were hired to work on the platform. 

The supreme court has determined that ―requiring parties to litigate a case . . . in 

Texas until it becomes clear that it is  ̳impossible‘ to defend the case due to unavailability 

of evidence and fact witnesses because they are beyond the reach of compulsory process 

is a waste of private and public resources.‖ General Elec. Co., 271 S.W.3d at 689, citing 

Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 511 (1947). 

Neither real parties, nor many witnesses in this case, are subject to compulsory 

process in Texas. Further, the real parties would have to obtain visas and, in the case of 

the crew members, permission of the Peruvian Navy to travel to Texas. Even though real 

parties could present witnesses they wish to call, relators could not present their

witnesses. The lack of compulsory process in Texas for reaching the great majority of 
12

witnesses would be substantially unjust. See Ensco, 311 S.W.3d at 925; Gen. Elec., 271 

S.W.3d at 689–90. 

The third statutory factor weighs in favor of granting the relators‘ motion to 

dismiss based on forum non conveniens.

C. Jurisdiction Over All Defendants; §71.051(b)(4)

The fourth factor is whether the alternate forum, as a result of the submission of 

the parties or otherwise, can exercise jurisdiction over all the defendants properly joined 

to the plaintiff‘s claim. See Tex. Civ. Prac. & Rem. Code § 71.051(b)(4). As stated 

earlier, relators have agreed to submit to Peruvian jurisdiction for purposes of this case, 

and dismissal can be conditioned on the Peruvian court accepting jurisdiction. Based 

upon relators‘ agreement to submit to personal jurisdiction in Peru and as long as any 

dismissal order is made contingent on the Peruvian court accepting jurisdiction and 

provides for jurisdiction in Texas in the event Peru declines jurisdiction, we conclude that 

Peru is an alternate forum that can exercise jurisdiction over the relators. See Torres, 965 

F.Supp. at 902–03; Ensco, 311 S.W.3d at 925–26; Gen. Elec., 271 S.W.3d at 690–91. 

The fourth statutory factor weighs in favor of granting the relators‘ motion to dismiss 

based on forum non conveniens. 

D. Public and Private Interest; §71.051(b)(5)

Under the fifth factor, we consider whether the balance of the private interests of 

the parties and the public interest of the state predominate in favor of the claim or action 

being brought in Peru, which includes consideration of the extent to which the personal 

injuries and deaths resulted from acts or omissions that occurred in Texas. See Tex. Civ. 

Prac. & Rem. Code § 71.051(b)(5).

1. Public Interest Factors

Generally, the public interest factors to be considered are administrative 

difficulties related to court congestion, burdening the people of a community with jury 
13

service when they have no relation to the litigation, local interest in having localized 

controversies decided at home, and trying a case in the forum that is at home with the law 

that governs the case. Gen. Elec., 271 S.W.3d at 691.

Within the public interest factors, litigating the suit in the forum that is at home 

with the governing law is an important consideration. Here, there is a question of 

whether Peruvian or American law would apply. The question of whether United States 

or Peruvian law applies to these maritime-injury claims is governed by the United States 

Supreme Court trilogy of Lauritzen v. Larsen, 345 U.S. 571 (1953), Romero v. 

International Terminal Operating Co., 358 U.S. 354 (1959), and Hellenic Lines Ltd. v. 

Rhoditis, 398 U.S. 306 (1970). See Stier v. Reading & Bates Corp., 992 S.W.2d 423, 426 

(Tex. 1999); Solano v. Gulf King 55, Inc., 212 F.3d 902, 905 (5th Cir. 2000). Under this

trilogy, courts apply the following eight factors in the conflict-of-laws analysis: (1) the 

place of the wrongful act, (2) the law of the flag, (3) the allegiance or domicile of the 

plaintiffs, (4) the allegiance of the defendant, (5) the place of contract, (6) the 

inaccessibility of the foreign forum, (7) the law of the forum, and (8) the shipowner‘s 

base of operations. See Solano, 212 F.3d at 905. These factors are not exclusive and 

have come to be known as the ―Lauritzen-Rhoditis factors.‖ See id. Each factor is to be 

weighed to determine whether all the factors add up to the necessary substantiality of 

contacts between the transaction at issue and the United States.5 See id.

Regarding the place of the allegedly wrongful acts, the personal injuries and 

deaths upon which the real parties base their suit occurred in Peru as a result of the 

explosion on the Supe in the territorial waters of Peru. The conduct of the commander of 

the Supe and BPZ Peru occurred in Peru.6 The real parties have alleged that the relators 

 

5 The real parties agree that the Lauritzen-Rhoditis factors should be used to determine whether 

Peruvian law or American law applies.

6 The real parties have alleged that BPZ Peru is an alter ego of relators and have sought to pierce the 

corporate veil between BPZ Peru and the relators. Nonetheless, the real parties have not provided evidence that 

would justify piercing BPZ Peru‘s corporate veil or treating it as the alter ego of the relators. Accordingly, we 

treat BPZ Peru as a separate legal entity for the purposes of the forum non conveniens analysis. See BMC 
14

made decisions in Houston that were a cause of the explosion, allegedly ordering that 

production on their subsidiary‘s platform be ―ramped up‖ to quickly generate needed 

cash, even though they allegedly knew that the operations involved dangerous 

procedures, insufficient equipment, and unseaworthy vessels. Presuming, without 

deciding, that this allegation is true, some of the allegedly wrongful conduct occurred in 

Texas, and this alleged conduct allegedly caused acts or omissions in Peru that allegedly 

resulted in the explosion, personal injuries, and deaths upon which these claims are 

based. 

As to law of the flag, the Supe was a Peruvian-flagged vessel, owned and operated 

by the Peruvian navy, and under the command of real party in interest/plaintiff Fernando 

Carlos Paolillo Tapia, a Peruvian naval officer (―Paolillo‖). BPZ Peru, a Peruvian 

company, owns platform CX-11, an oil production platform located in Peruvian territorial 

waters. To assist in activities related to the extraction of oil from its platform, BPZ Peru 

contracted with Tecnomarine, a Peruvian company, to provide various vessels. 

Tecnomarine time chartered the Supe from the Peruvian navy and provided the Supe to 

BPZ Peru. 

Regarding the allegiance and domicile of the plaintiffs, real parties are 32 

Peruvians who reside in Peru and representatives of the estates of two deceased 

Peruvians. The owner of the Supe is the Peruvian navy. Even if BPZ Peru is deemed to 

have time chartered the Supe, BPZ Peru is a Peruvian company. Relators are Texas 

corporations with their principal place of business in Texas. 

As to the ―place of contract,‖ this factor refers to the place of the contract between 

the injured parties and the shipowner. See Romero v. International Terminal Operating 

 

Software Belgium, N.V., v. Marchand, 83 S.W.3d 789, 798–99 (Tex. 2002) (holding that Texas law presumes 

that two separate corporations are distinct entities and that party seeking to ascribe one corporation‘s actions to 

another by disregarding their distinct corporate entities must prove this allegation); Couch v. Chevron Intern. Oil 

Co., 672 S.W.2d 16, 18 (Tex. App.—Houston [14th Dist.] 1984, writ ref‘d n.r.e.) (declining to treat British 

subsidiary as alter ego of American parent company in forum non conveniens analysis, absent evidence in 

record supporting alter ego allegation).
15

Co., 358 U.S. at 383; Cooper v. Meridian Yachts, Ltd., 575 F.3d 1151, 1174 (11th Cir 

2009); Solano, 212 F.3d at 905. The place of any contract between the real parties and 

the Peruvian navy would be in Peru. There is no evidence of any contract between the 

real parties and the relators or between the real parties and BPZ Peru. The real parties 

argue that this factor addresses the place of the time charter of the Supe. Even if this 

were correct, the record reflects that the Supe was time chartered from the Peruvian navy 

by a Peruvian company in Peru. 

As to the inaccessibility of the forum, as discussed above, the record reflects that 

Peruvian courts provide the real parties with a remedy. The real parties live in Peru and 

are able to litigate their claims in Peru. See Miller v. Phillips Petroleum Co. Norway, 537 

A.2d 190, 199–200 (Del. 1988) (concluding that courts of Norway were not inaccessible 

in concluding that law of Norway applied under Lauritzen-Rhoditis factors). 

The law of the forum is American law, but this factor is given little weight in the 

conflict-of-laws analysis. See Fogleman v. ARAMCO, 920 F.2d 278, 283 (5th Cir. 1991).

The Peruvian navy‘s base of operations is in Peru. There is no evidence that the 

Supe ever worked in United States waters. Even if the relators‘ corporate base of 

operations was in Texas, the evidence reflects that the base from which the Supe was 

operated on a day-to-day basis was in Peru. The day-to-day operations of BPZ Peru 

regarding the CX-11 oil production platform were conducted in Peru. See id. at 284. 

Though the relators are Texas corporations who made allegedly negligent 

decisions that allegedly led to the explosion on the Supe, considering all of the LauritzenRhoditis factors, we conclude as a matter of law that Peruvian law applies to the real 

parties‘ claims.7 See Solano, 212 F.3d at 905–07 (holding as a matter of law that 

Nicaraguan law applied rather than American law to personal-injury claims brought by 

 

7 Even if we conducted the conflict-of-laws analysis under Texas principles, these principles are 

similar to the Lauritzen-Rhoditis factors, and we would reach the same conclusion under the Texas 

principles. See Ensco, 311 S.W.3d at 928. 
16

Nicaraguan citizens allegedly injured in Nicaragua aboard vessels owned by American 

companies); Ali v. The Offshore Co., 753 F.2d 1327, 1331–32 (5th Cir. 1985) (holding 

that the law of Trinidad applied to wrongful-death claims brought by widows of deceased 

citizens of Trinidad who died in the territorial waters of Trinidad aboard a drilling vessel 

owned by a Liberian company, an affiliate of various American companies who also were 

sued), overruled on other grounds by In re Air Crash Disaster Near New Orleans, La. On 

July 9, 1982, 821 F.2d 1147, 1163–64 n. 25 (5th Cir. 1987) (en banc); Koke v. Phillips 

Petroleum Co., 730 F.2d 211, 213, 218–20 (5th Cir. 1984) (holding that the law of 

Norway applied to personal-injury claims brought by British citizens injured in the 

territorial waters of Norway while working aboard a vessel owned by a Delaware 

corporation with its principal place of business in Dallas, Texas), overruled on other 

grounds by In re Air Crash Disaster Near New Orleans, La. On July 9, 1982, 821 F.2d 

1147, 1163–64 n. 25 (5th Cir. 1987) (en banc); Miller, 537 A.2d at 191, 195–201 

(holding that the law of Norway applied to wrongful-death claims brought by survivors 

and representatives of deceased seamen who died in the territorial waters of Norway 

aboard a Norwegian-flagged vessel owned by a Norwegian company and bareboatchartered to a Delaware corporation); Couch v. Chevron Intern. Oil Co., 672 S.W.2d 16, 

18 (Tex. App.—Houston [14th Dist.] 1984, writ ref‘d n.r.e.) (holding that trial court did 

not err in concluding American law did not apply to wrongful-death claims brought by 

Scottish survivors of a deceased Scottish crew member of a British-flagged vessel who 

died during operations in the North Sea). Because Peruvian law applies, Peru is the 

forum most at home with the law governing this case. See Ensco, 311 S.W.3d at 928.

Relators argue that the people of Texas should not be burdened with jury service

when they have no relationship to the Peruvian plaintiffs or a Peruvian ship working off 

the coast of Peru. This litigation involves two corporate defendants based in Houston, 

Texas, and the real parties allege that the relators committed wrongful acts in Houston. 

Therefore, this litigation has some relation to the people of Harris County. Nonetheless, 
17

we have concluded that Peruvian law applies, and the occurrence giving rise to the real 

parties‘ claims has a more substantial connection with Peru than it does Texas. The 

Texas Supreme Court has noted that a plaintiff‘s home jurisdiction usually has a strong 

interest in seeing its compensatory damages law applied. See Torrington Co. v. 

Stutzman, 46 S.W.3d 829, 849 (Tex. 2000). We conclude that Peru has a strong interest in 

having this controversy decided at home in Peru. 

The record contains a State Department report stating that cases in the Peruvian 

judicial system can sometimes ―drag on for years.‖ But this report does not state that this 

delay is related to court congestion. There appears to be little, if any, evidence in the 

record of administrative difficulties related to court congestion. 

2. Private Interest Factors

The private interest considerations generally are considered to be the ease of 

access to proof, the availability and cost of compulsory process, the possibility of 

viewing the premises, if appropriate, and other practical issues affecting the ease, 

efficiency, and expense of trial. See Gen. Elec., 271 S.W.3d at 691. Regarding relative 

ease of access to sources of proof, there is no allegation or proof of any eyewitness to the 

incident who resides in the United States. Unwilling witnesses in Peru cannot be 

compelled to testify in a Texas action. For those witnesses who are willing to testify in 

Texas, and who can obtain the necessary visas to do so, there will be costs in bringing

them to Houston to testify, and housing and feeding them while here. The ease of access 

to proof by relators‘ agents and employees or by their business records is higher in Texas 

than in Peru. On the other hand, the ease of access to other proof regarding the 

occurrence made the basis of this suit, including third-party witnesses in Peru, is higher in 

Peru than in Texas. The explosion on the Supe has been investigated by Peruvian 

authorities, and Peruvian authorities are pursuing criminal prosecutions regarding this 

incident.
18

Peru does not have compulsory process for either witnesses or documentary 

evidence regardless of its source. In Texas, there is no compulsory process for the 

plaintiffs or witnesses from Peru. 

Viewing the site of the explosion is not appropriate because the ship sank. 

According to real parties, video documentation was made of the accident site. Therefore, 

proximity to the accident site does not tip the scale either way.

As part of the balancing of private interests, we factor in the state of political 

unrest in Peru. In support of their argument that political unrest makes it unsafe to try 

this case in Peru, real parties presented evidence that several Amazonian tribes had staged 

violent protests in front of the Peruvian embassy in 2008 and 2009. Information from the 

State Department‘s website in June, 2010, stated that the ―Shining Path‖ terrorist group is 

active, and ―sporadic incidents of Shining Path violence have occurred in the recent past 

in rural provinces[.]‖ The report also noted that ―usually peaceful‖ political 

demonstrations and labor-related strikes and marches regularly occur in urban and some 

rural areas, and can ―escalate into violent confrontations.‖ 

Allegations of political unrest have generally been unsuccessful in courts‘ 

determinations that a foreign forum is inconvenient. In Paolicelli v. Ford Motor Co., 289 

Fed. Appx. 387, 391 (11th Cir. 2008), the court found that ―absent evidence the political 

unrest has affected the Colombian judicial system or would affect litigation of this case, 

this fact is not sufficient to outweigh the other factors that weigh in favor of dismissal.‖ 

In In re Bridgestone/Firestone, Inc., 190 F.Supp. 1125, 1143–44 (S.D. Ind. 2002), the 

court found that political unrest including ―physical threats to litigants and witnesses‖ 

was a factor in making trial there less convenient, but was not enough alone to conclude 

that Colombia was not a convenient forum.
19

In this case, despite the serious concerns raised by the real parties, they have not 

shown that, alone, the political unrest surrounding environmental protests causes Peru to 

be an inconvenient forum. 

3. The Balance of the Private Interests and the Public Interest

The balance of the private interests of the parties and the public interest must 

include consideration of the extent to which the real parties‘ injuries resulted from acts or 

omissions that occurred in Texas. See Tex. Civ. Prac. & Rem. Code Ann. § 71.051(b). 

The conduct of Paolillo, the crew of the Supe, and BPZ Peru occurred in Peru. We 

presume, without deciding, that the relators made decisions in Houston that were a legal 

cause of the explosion when they allegedly ordered production on the platform to be 

―ramped up‖ to quickly generate needed cash, even though they allegedly knew that the 

operations involved dangerous procedures, insufficient equipment, and unseaworthy 

vessels. Under this presumption, the real parties‘ injuries would have resulted in part 

from acts or omissions that occurred in Texas. Nonetheless, these alleged acts and 

omissions in Texas would be a more remote cause of the real parties‘ injuries than the 

alleged acts or omissions in Peru of Paolillo, the crew of the Supe, and BPZ Peru.

After carefully considering the private interests and the public interest and the 

extent to which the injuries and deaths resulted from acts or omissions in Texas, we 

conclude that the balance of the parties‘ private interests and the public interest of the 

state predominate in favor of this action being brought in a Peruvian court. See In re 

Ensco, 311 S.W.3d at 926–28; In Re Omega Protein, Inc., 288 S.W.3d at 21–23. We 

conclude that the fifth statutory factor weighs in favor of granting the relators‘ motion to 

dismiss based on forum non conveniens.

In making their argument that the public and private interest factors weigh in favor 

of jurisdiction in Texas, real parties rely on the factors found by the court in Vinson v. 

American Bureau of Shipping, 318 S.W.3d 34, (Tex. App.—Houston [1st Dist.] 2010, 

pet. denied). In that case, Vinson, an oil rig employee and Alabama resident, brought a 
20

personal injury action in Texas for injuries incurred while working as a crew member 

aboard a drilling rig. Id. at 38. The trial court granted the defendant‘s motion to dismiss 

based upon forum non conveniens in favor of an alternate forum in Singapore, which is 

where the accident occurred. Id. at 40. The court of appeals analyzed the section 71.051 

factors, found that most weighed in favor of a Texas forum, and reversed the trial court.

In Vinson, the plaintiff was injured on a drilling rig owned by a Houston company 

while the rig was operating off the coast of Singapore. Id. at 39. He was from Alabama, 

received emergency medical treatment in Singapore, but the rest of his medical treatment 

took place in Houston and Alabama. Id. Contracts for building the rig were negotiated 

and signed in Texas, and a Houston company was hired to investigate the accident. Id. 

Real parties assert that the factors are similar in this case. They assert the

contracts for negotiating the chartering and use of the Supe were approved by the 

company officers and board of directors located in Houston. The record reflects that 

decisions were made in Peru and in Houston with regard to the vessels, and all decisions 

are made with board oversight. The board is in located in the United States. A Houston 

company investigated the vessels before the explosion, but the Harbor Master in Peru 

appointed an independent expert in Peru to investigate the explosion after it occurred. 

One of the plaintiffs received burn treatment in Houston, and most of the plaintiffs‘ 

medical records are in Peru and are written in Spanish. In further contrast to Vinson, here 

the plaintiffs are all Peruvian citizens; in Vinson, no citizen of Singapore was alleged to 

have been responsible. Id. at 50. Also, in Vinson, no physical evidence remained in 

Singapore; even the rig had been moved to the Gulf of Mexico. Id. at 45-47. We do not 

find the court‘s decision in Vinson determinative in the balancing of factors in this case.

E. Unreasonable Duplication of Litigation; § 71.051(b)(6)

Relators assert that rather than resulting in duplication or proliferation of litigation, 

dismissal will result in less litigation. There are three outstanding lawsuits in Peru. 
21

Litigation is proceeding between BPZ Exploracion y Produccion, the Peruvian Navy, and 

Captain Paolillo in a civil action for damages. Further, Captain Paolillo was prosecuted 

in a criminal action in Peru. A conditional dismissal of the real parties‘ claims in Texas 

so that they can file these claims in Peru would not result in unreasonable duplication or 

proliferation of litigation. We conclude that the sixth statutory factor weighs in favor of 

granting the relators‘ motion to dismiss based on forum non conveniens.

III. Conclusion

When all of the section 71.051(b) factors in a case favor the conclusion that an 

action would be more properly held in a forum outside Texas, as they do here, the statute 

requires the trial court to grant a motion requesting that it decline to exercise its 

jurisdiction. See Gen. Elec., 271 S.W.3d at 693–94. The trial court‘s denial of the 

relators‘ motion to dismiss violated section 71.051(b) and was an abuse of its discretion. 

See id. We conditionally grant the petition for writ of mandamus. We are confident the 

trial court will vacate its order denying the motion, and will grant the relators‘ motion to 

dismiss contingent on the Peruvian court accepting jurisdiction, and providing for 

jurisdiction in Texas in the event Peru declines jurisdiction. The writ will issue only if 

the court fails to comply.

/s/ Martha Hill Jamison

Justice

Panel consists of Justices Frost, Seymore, and Jamison.