Republic of the Philippines

SUPREME COURT
Manila

EN BANC

G.R. No. L-18164           January 23, 1967

WILLIAM F. GEMPERLE, plaintiff-appellant, 
vs.
HELEN SCHENKER and PAUL SCHENKER as her husband, defendants-appellees.

Gamboa & Gamboa for plaintiff-appellant.

A. R. Narvasa for defendants-appellees.

CONCEPCION, C. J.:

Appeal, taken by plaintiff, William F. Gemperle, from a decision of the Court of First Instance of Rizal dismissing this case
for lack of jurisdiction over the person of defendant Paul Schenker and for want of cause of action against his wife and co-
defendant, Helen Schenker said Paul Schenker "being in no position to be joined with her as party defendant, because he is
beyond the reach of the magistracy of the Philippine courts."

The record shows that sometime in 1952, Paul Schenker-hereinafter referred to as Schenker — acting through his wife and
attorney-in-fact, Helen Schenker — herein-after referred to as Mrs. Schenker — filed with the Court of First Instance of
Rizal, a complaint — which was docketed as Civil Case No. Q-2796 thereof — against herein plaintiff William F. Gemperle,
for the enforcement of Schenker's allegedly initial subscription to the shares of stock of the Philippines-Swiss Trading Co.,
Inc. and the exercise of his alleged pre-emptive rights to the then unissued original capital stock of said corporation and the
increase thereof, as well as for an accounting and damages. Alleging that, in connection with said complaint, Mrs. Schenker
had caused to be published some allegations thereof and other matters, which were impertinent, irrelevant and immaterial to
said case No. Q-2796, aside from being false and derogatory to the reputation, good name and credit of Gemperle, "with the
only purpose of attacking" his" honesty, integrity and reputation" and of bringing him "into public hatred, discredit, disrepute
and contempt as a man and a businessman", Gemperle commenced the present action against the Schenkers for the recovery
of P300,000 as damages, P30,000 as attorney's fees, and costs, in addition to praying for a judgment ordering Mrs. Schenker
"to retract in writing the said defamatory expressions". In due course, thereafter, the lower court, rendered the decision above
referred to. A reconsiderating thereof having been denied, Gemperle interposed the present appeal.

The first question for determination therein is whether or not the lower court had acquired jurisdiction over the person of
Schenker. Admittedly, he, a Swiss citizen, residing in Zurich, Switzerland, has not been actually served with summons in the
Philippines, although the summons address to him and Mrs. Schenker had been served personally upon her in the Philippines.
It is urged by plaintiff that jurisdiction over the person of Schenker has been secured through voluntary appearance on his
part, he not having made a special appearance to assail the jurisdiction over his person, and an answer having been filed in
this case, stating that "the defendants, by counsel, answering the plaintiff's complaint, respectfully aver", which is allegedly a
general appearance amounting to a submission to the jurisdiction of the court, confirmed, according to plaintiff, by a
P225,000 counterclaim for damages set up in said answer; but this counterclaim was set up by Mrs. Schenker alone, not
including her husband. Moreover, said answer contained several affirmative defenses, one of which was lack of jurisdiction
over the person of Schenker, thus negating the alleged waiver of this defense. Nevertheless, We hold that the lower court had
acquired jurisdiction over said defendant, through service of the summons addressed to him upon Mrs. Schenker, it appearing
from said answer that she is the representative and attorney-in-fact of her husband aforementioned civil case No. Q-2796,
which apparently was filed at her behest, in her aforementioned representative capacity. In other words, Mrs. Schenker had
authority to sue, and had actually sued on behalf of her husband, so that she was, also, empowered to represent him in suits
filed against him, particularly in a case, like the of the one at bar, which is consequence of the action brought by her on his
behalf.
Inasmuch as the alleged absence of a cause of action against Mrs. Schenker is premised upon the alleged lack of jurisdiction
over the person of Schenker, which cannot be sustained, it follows that the conclusion drawn therefore from is, likewise,
untenable. 

Wherefore, the decision appealed from should be, is hereby, reversed, and the case remanded to the lower court for
proceedings, with the costs of this instance defendants-appellees. It is so ordered.

Reyes, J.B.L., Dizon, Regala, Makalintal, Bengzon, J.P., Zaldivar, Sanchez and Castro, JJ., concur.
95 U.S. 714
24 L.Ed. 565
PENNOYER
v.
NEFF.
October Term, 1877
ERROR to the Circuit Court of the United States for the District of Oregon.
This action was brought by Neff against Pennoyer for the recovery of a tract of land situated in Multnomah County, Oregon.
Pennoyer, in his answer, denied Neff's title and right to possession, and set up a title in himself.
By consent of parties, and in pursuance of their written stipulation filed in the case, the cause was tried by the court, and a
special verdict given, upon which judgment was rendered in favor of Neff; whereupon Pennoyer sued out this writ of error.
The parties respectively claimed title as follows: Neff, under a patent issued to him by the United States, March 19, 1866; and
Pennoyer, by virtue of a sale made by the sheriff of said county, under an execution sued out upon a judgment against Neff,
rendered Feb. 19, 1866, by the Circuit Court for said county, in an action wherein he was defendant, and J. H. Mitchell was
plaintiff. Neff was then a non-resident of Oregon.
In Mitchell v. Neff, jurisdiction of Neff was obtained by service of summons by publication. Pennoyer offered in evidence
duly certified copies of the complaint, summons, order for publication of summons, affidavit of service by publication, and
the judgment in that case; to the introduction of which papers the plaintiff objected, because, 1, said judgment is  in personam,
and appears to have been given without the appearance of the defendant in the action, or personal service of the summons
upon him, and while he was a non-resident of the State, and is, therefore, void; 2, said judgment is not  in rem, and, therefore,
constitutes no ba is of title in the defendant; 3, said copies of complaint, &c., do not show jurisdiction to give the judgment
alleged, either in rem or personam; and, 4, it appears from said papers that no proof of service by publication was ever made,
the affidavit thereof being made by the 'editor' of the 'Pacific Christian Advocate,' and not by 'the printer, or his foreman or
principal clerk.' The court admitted the evidence subject to the objections.
The finding of the court in regard to the facts bearing upon the asserted jurisdiction of the State court is as follows:——
That on Nov. 13, 1865, Mitchell applied to said Circuit Court, upon his own affidavit of that date, for an order allowing the
service of the summons in said action to be made upon Neff, by publication thereof; whereupon said court made said order, in
the words following: 'Now, at this day, comes the plaintiff in his proper person, and by his attorneys, Mitchell and Dolph, and
files affidavit of plaintiff, and motion for an order of publication of summons, as follows, to wit: 'Now comes the plaintiff, by
his attorneys, and upon the affidavit of plaintiff, herewith filed, moves the court for an order of publication of summons
against defendant, as required by law, he being a non-resident;' and it appearing to the satisfaction of the court that the
defendant cannot, after due diligence, be found in this State, and that he is a non-resident thereof, that his place of residence is
unknown to plaintiff, and cannot, with reasonable diligence, be ascertained by him, and that the plaintiff has a cause of action
of action against defendant, and that defendant has property in this county and State, it is ordered and adjudged by the court
that service of the summons in this action be made by publication for six weeks successively in the 'Pacific Christian
Advocate,' a weekly newspaper published in Multnomah County, Oregon, and this action is continued for such service.' That
the affidavit of plaintiff, referred to in said order, is in the words following: 'I, J. H. Mitchell, being first duly sworn, say that
the defendant, Marcus Neff, is a non-resident of this State; that he resides somewhere in the State of California, at what place
affiant knows not, and he cannot be found in this State; that plaintiff has a just cause of action against defendant for a money-
demand on account; that this court has jurisdiction of such action; that the defendant has property in this county and State.'
That the complaint in said action was verified and filed on Nov. 3, 1865, and contained facts tending to prove that at that date
said Mitchell had a cause of action against said Neff for services as an attorney, performed 'between Jan. 1, 1862, and May
15, 1863.' That the entry of judgment in said action contained the following averments: 'And it appearing to the court that the
defendant was, at the time of the commencement of this action, and ever since has been, a non-resident of this State; and it
further appearing that he has property in this State, and that defendant had notice of the pendency of this action by publication
of the summons for six successive weeks in the 'Pacific Christian Advocate,' a weekly newspaper of general circulation
published in Multnomah County, State of Oregon, the last issue of which was more than twenty days before the first day of
this term.' That the affidavit showing the publication of the summons in the 'Advocate' aforesaid was made as stated therein
by the 'editor' of that paper. That said complaint, summons, affidavit of Mitchell and of the 'editor' of the 'Advocate' aforesaid,
and entry of judgment, were in the judgment roll, made up by the clerk in the case, but the order for publication of the
summons aforesaid was not placed in said roll by said clerk, but remains on the files of said court; and that when said court
made said order for publication, and gave said judgment against Neff, the only evidence it had before it to prove the facts
necessary to give it jurisdiction therefor, and particularly to authorize it to find and state that Neff's residence was unknown to
Mitchell, and could not, with reasonable diligence, be ascertained by him, and that Neff had notice of the pendency of said
action by the publication of the summons as aforesaid, was, so far as appears by the said roll and the records and files of the
said court, the said complaint and affidavits of Mitchell and the editor of the 'Advocate.'
The statute of Oregon at the time of the commencement of the suit against Neff was as follows——
'SECT. 5. When service of the summons cannot be made as prescribed in the last preceding section, and the defendant, after
due diligence, cannot be found within the State, and when that fact appears, by affidavit, to the satisfaction of the court or
judge thereof, or justice in an action in a justice's court, and it also appears that a cause of action exists against the defendant,
or that he is a proper party to an action relating to real property in this State, such court or judge or justice may grant an order
that the service be made by publication of summons in either of the following cases: . . .
When the defendant is not a resident of the State, but has property therein, and the court has jurisdiction of the subject of the
action.

'SECT. 56. The order shall direct the publication to be made in a newspaper published in the county where the action is
commenced, and, if no newspaper be published in the county, then in a newspaper to be designated as most likely to give
notice to the person to be served, and for such length of time as may be deemed reasonable, not less than once a week for six
weeks. In case of publication, the court or judge shall also direct a copy of the summons and complaint to be forthwith
deposited in the post-office, directed to the defendant, at his place of residence, unless it shall appear that such residence is
neither known to the party making the application, nor can, with reasonable diligence, be ascertained by him. When
publication is ordered, personal service of a copy of the summons and complaint out of the State shall be equivalent to
publication and deposit in the post-office. In either case, the defendant shall appear and answer by the first day of the term
following the expiration of the time prescribed in the order for publication; and, if he does not, judgment may be taken against
him for want thereof. In case of personal service out of the State, the summons shall specify the time prescribed in the order
for publication.
'SECT. 57. The defendant against whom publication is ordered, or his personal representatives, on application and sufficient
cause shown, at any time before judgment, shall be allowed to defend the action; and the defendant against whom publication
is ordered, or his representatives, may in like manner, upon good cause shown, and upon such terms as may be proper, be
allowed to defend after judgment, and within one year after the entry of such judgment, on such terms as may be just; and, if
the defence be successful, and the judgment or any part thereof have been collected or otherwise enforced, such restitution
may thereupon be compelled as the court shall direct. But the title to property sold upon execution issued on such judgment to
a purchaser in good faith shall not be thereby affected.'
'SECT. 60. Proof of the service of summons shall be, in case of publication, the affidavit of the printer, or his foreman, or his
principal clerk, showing the same.'
Mr. W. F. Trimble for the plaintiff in error.
Mr. James K. Kelly, contra.
MR. JUSTICE FIELD delivered the opinion of the court.
This is an action to recover the possession of a tract of land, of the alleged value of $15,000, situated in the State of Oregon.
The plaintiff asserts title to the premises by a patent of the United States issued to him in 1866, under the act of Congress of
Sept. 27, 1850, usually known as the Donation Law of Oregon. The defendant claims to have acquired the premises under a
sheriff's deed, made upon a sale of the pro erty on execution issued upon a judgment recovered against the plaintiff in one of
the circuit courts of the State. The case turns upon the validity of this judgment.
It appears from the record that the judgment was rendered in February, 1866, in favor of J. H. Mitchell, for less than $300,
including costs, in an action brought by him upon a demand for services as an attorney; that, at the time the action was
commenced and the judgment rendered, the defendant therein, the plaintiff here, was a non-resident of the State that he was
not personally served with process, and did not appear therein; and that the judgment was entered upon his default in not
answering the complaint, upon a constructive service of summons by publication.
The Code of Oregon provides for such service when an action is brought against a non-resident and absent defendant, who has
property within the State. It also provides, where the action is for the recovery of money or damages, for the attachment of the
property of the non-resident. And it also declares that no natural person is subject to the jurisdiction of a court of the State,
'unless he appear in the court, or be found within the State, or be a resident thereof, or have property therein; and, in the last
case, only to the extent of such property at the time the jurisdiction attached.' Construing this latter provision to mean, that, in
an action for money or damages where a defendant does not appear in the court, and is not found within the State, and is not a
resident thereof, but has property therein, the jurisdiction of the court extends only over such property, the declaration
expresses a principle of general, if not universal, law. The authority of every tribunal is necessarily restricted by the territorial
limits of the State in which it is established. Any attempt to exercise authority beyond those limits would be deemed in every
other forum, as has been said by this court, in illegitimate assumption of power, and be resisted as mere
abuse. D'Arcy v. Ketchum et al., 11 How. 165. In the case against the plaintiff, the property here in controversy sold under the
judgment rendered was not attached, nor in any way brought under the jurisdiction of the court. Its first connection with the
case was caused by a levy of the execution. It was not, therefore, disposed of pursuant to any adjudication, but only in
enforcement of a personal judgment, having no relation to the property, rendered against a non-resident without service of
process upon him in the action, or his appearance therein. The court below did not consider that an attachment of the property
was essential to its jurisdiction or to the validity of the sale, but held that the judgment was invalid from defects in the
affidavit upon which the order of publication was obtained, and in the affidavit by which the publication was proved.
Thers is some difference of opinion among the members of this court as to the rulings upon these alleged defects. The
majority are of opinion that inasmuch as the statute requires, for an order of publication, that certain facts shall appear by
affidavit to the satisfaction of the court or judge, defects in such affidavit can only be taken advantage of on appeal, or by
some other direct proceeding, and cannot be urged to impeach the judgment collaterally. The majority of the court are also of
opinion that the provision of the statute requiring proof of the publication in a newspaper to be made by the 'affidavit of the
printer, or his foreman, or his principal clerk,' is satisfied when the affidavit is made by the editor of the paper. The term
'printer,' in their judgment, is there used not to indicate the person who sets up the type,—he does not usually have a foreman
or clerks,—it is rather used as synonymous with publisher. The Supreme Court of New York so held in one case; observing
that, for the purpose of making the required proof, publishers were 'within the spirit of the statute.'  Bunce v. Reed, 16 Barb.
(N. Y.) 350. And, following this ruling, the Supreme Court of California held that an affidavit made by a 'publisher and
proprietor' was sufficient. Sharp v. Daugney, 33 Cal. 512. The term 'editor,' as used when the statute of New York was passed,
from which the Oregon law is borrowed, usually included not only the person who wrote or selected the articles for
publication, but the person who published the paper and put it into circulation. Webster, in an early edition of his Dictionary,
gives as one of the definitions of an editor, a person 'who superintends the publication of a newspaper.' It is principally since
that time that the business of an editor has been separated from that of a publisher and printer, and has become an independent
profession.
If, therefore, we were confined to the rulings of the court below upon the defects in the affidavits mentioned, we should be
unable to uphold its decision. But it was also contended in that court, and is insisted upon here, that the judgment in the State
court against the plaintiff was void for want of personal service of process on him, or of his appearance in the action in which
it was rendered and that the premises in controversy could not be subjected to the payment of the demand of a resident
creditor except by a proceeding in rem; that is, by a direct proceeding against the property for that purpose. If these positions
are sound, the ruling of the Circuit Court as to the invalidity of that judgment must be sustained, notwithstanding our dissent
from the reasons upon which it was made. And that they are sound would seem to follow from two well-established principles
of public law respecting the jurisdiction of an independent State over persons and property. The several States of the Union
are not, it is true, in every respect independent, many of the right and powers which originally belonged to them being now
vested in the government created by the Constitution. But, except as restrained and limited by that instrument, they possess
and exercise the authority of independent States, and the principles of public law to which we have referred are applicable to
them. One of these principles is, that every State possesses exclusive jurisdiction and sovereignty over persons and property
within its territory. As a consequence, every State has the power to determine for itself the civil  status and capacities of its
inhabitants; to prescribe the subjects upon which they may contract, the forms and solemnities with which their contracts shall
be executed, the rights and obligations arising from them, and the mode in which their validity shall be determined and their
obligations enforced; and also the regulate the manner and conditions upon which property situated within such territory, both
personal and real, may be acquired, enjoyed, and transferred. The other principle of public law referred to follows from the
one mentioned; that is, that no State can exercise direct jurisdiction and authority over persons or property without its
territory. Story, Confl. Laws, c. 2; Wheat. Int. Law, pt. 2, c. 2. The several States are of equal dignity and authority, and the
independence of one implies the exclusion of power from all others. And so it is laid down by jurists, as an elementary
principle, that the laws of one State have no operation outside of its territory, except so far as is allowed by comity; and that
no tribunal established by it can extend its process beyond that territory so as to subject either persons or property to its
decisions. 'Any exertion of authority of this sort beyond this limit,' says Story, 'is a mere nullity, and incapable of binding such
persons or property in any other tribunals.' Story, Confl. Laws, sect. 539.
But as contracts made in one State may be enforceable only in another State, and property may be held by non-residents, the
exercise of the jurisdiction which every State is admitted to possess over persons and property within its own territory will
often affect persons and property without it. To any influence exerted in it is way by a State affecting persons resident or
property situated elsewhere, no objection can be justly taken; whilst any direct exertion of authority upon them, in an attempt
to give ex-territorial operation to its laws, or to enforce an ex-territorial jurisdiction by its tribunals, would be deemed an
encroachment upon the independence of the State in which the persons are domiciled or the property is situated, and be
resisted as usurpation.
Thus the State, through its tribunals, may compel persons domiciled within its limits to execute, in pursuance of their
contracts respecting property elsewhere situated, instruments in such form and with such solemnities as to transfer the title, so
far as such formalities can be complied with; and the exercise of this jurisdiction in no manner interferes with the supreme
control over the property by the State within which it is situated. Penn v. Lord Baltimore, 1 Ves. 444; Massie v. Watts, 6
Cranch, 148; Watkins v. Holman, 16 Pet. Corbett v. Nutt, 10 Wall. 464.
15
So the State, through its tribunals, may subject property situated within its limits owned by non-residents to the payment of
the demand of its own citizens against them; and the exercise of this jurisdiction in no respect infringes upon the sovereignty
of the State where the owners are domiciled. Every State owes protection to its own citizens; and, when non-residents deal
with them, it is a legitimate and just exercise of authority to hold and appropriate any property owned by such non-residents to
satisfy the claims of its citizens. It is in virtue of the State's jurisdiction over the property of the non-resident situated within
its limits that its tribunals can inquire into that non-resident's obligations to its own citizens, and the inquiry can then be
carried only to the extent necessary to control the disposition of the property. If the non-resident have no property in the State,
there is nothing upon which the tribunals can adjudicate.
16
These views are not new. They have been frequently expressed, with more or less distinctness, in opinions of eminent judges,
and have been carried into adjudications in numerous cases. Thus, in Picquet v. Swan, 5 Mas. 35, Mr. Justice Story said:——
17
'Where a party is within a territory, he may justly be subjected to its process, and bound personally by the judgment
pronounced on such process against him. Where he is not within such territory, and is not personally subject to its laws, if, on
account of his supposed or actual property being within the territory, process by the local laws may, by attachment, go to
compel his appearance, and for his default to appear judgment may be pronounced against him, such a judgment must, upon
general principles, be deemed only to bind him to the extent of such property, and cannot have the effect of a conclusive
judgment in personam, for the plain reason, that, except so far as the property is concerned, it is a judgment coram non
judice.'
18
And in Boswell's Lessee v. Otis, 9 How. 336, where the title of the plaintiff in ejectment was acquired on a sheriff's sale, under
a money decree rendered upon publication of notice against non-residents, in a suit brought to enforce a contract relating to
land, Mr. Justice McLean said:——
19
'Jurisdiction is acquired in one of two modes: first, as against the person of the defendant by the service of process; or,
secondly, by a procedure against the property of the defendant within the jurisdiction of the court. In the latter case, the
defendant is not personally bound by the judgment beyond the property in question. And it is immaterial whether the
proceeding against the property be by an attachment or bill in chancery. It must be substantially a proceeding in rem.'
20
These citations are not made as authoritative expositions of the law; for the language was perhaps not essential to the decision
of the cases in which it was used, but as expressions of the opinion of eminent jurists. But in  Cooper v. Reynolds, report d in
the 10th of Wallace, it was essential to the disposition of the case to declare the effect of a personal action against an absent
party, without the jurisdiction of the court, not served with process or voluntarily submitting to the tribunal, when it was
sought to subject his property to the payment of a demand of a resident complainant; and in the opinion there delivered we
have a clear statement of the law as to the efficacy of such actions, and the jurisdiction of the court over them. In that case, the
action was for damages for alleged false imprisonment of the plaintiff; and, upon his affidavit that the defendants had fled
from the State, or had absconded or concealed themselves so that the ordinary process of law could not reach them, a writ of
attachment was sued out against their property. Publication was ordered by the court, giving notice to them to appear and
plead, answer or demur, or that the action would be taken as confessed and proceeded in ex parte as to them. Publication was
had; but they made default, and judgment was entered against them, and the attached property was sold under it. The
purchaser having been put into possession of the property, the original owner brought ejectment for its recovery. In
considering the character of the proceeding, the court, speaking through Mr. Justice Miller, said:
21
'Its essential purpose or nature is to establish, by the judgment of the court, a demand or claim against the defendant, and
subject his property lying within the territorial jurisdiction of the court to the payment of that demand. But the plaintiff is met
at the commencement of his proceedings by the fact that the defendant is not within the territorial jurisdiction, and cannot be
served with any process by which he can be brought personally within the power of the court. The this difficulty the statute
has provided a remedy. It says that, upon affidavit being made of that fact, a writ of attachment may be issued and levied on
any of the defendant's property, and a publication may be made warning him to appear; and that thereafter the court may
proceed in the case, whether he appears or not. If the defendant appears, the cause becomes mainly a suit  in personam, with
the added incident, that the property attached remains liable, under the control of the court, to answer to any demand which
may be established against the defendant by the final judgment of the court. But if there is no appearance of the defendant,
and no service of process on him, the case becomes in its essential nature a proceeding  in rem, the only effect of which is to
subject the property attached to the payment of the demand which the court may find to be due to the plaintiff. That such is
the nature of this proceeding in this latter class of cases is clearly evinced by two well-established propositions: first, the
judgment of the court, though in form a personal judgment against the defendant, has no effect beyond the property attached
in that suit. No general execution can be issued for any balance unpaid after the attached property is exhausted. No suit can be
maintained on such a judgment in the same court, or in any other; nor can it be used as evidence in any other proceeding not
affecting the attached property; nor could the costs in that proceeding be collected of defendant out of any other property than
that attached in the suit. Second, the court, in such a suit, cannot proceed, unless the officer finds some property of defendant
on which to levy the writ of attachment. A return that none can be found is the end of the case, and deprives the court of
further jurisdiction, though the publication may have been duly made and proven in court.'
22
The fact that the defendants in that case had fled from the State, or had concealed themselves, so as not to be reached by the
ordinary process of the court, and were not non-residents, was not made a point in the decision. The opinion treated them as
being without the territorial jurisdiction of the court; and the grounds and extent of its authority over persons and property
thus situated were considered, when they were not brought within its jurisdiction by personal service or voluntary appearance.
23
The writer of the present opinion considered that some of the objections to the preliminary proceedings in the attachment suit
were well taken, and therefore dissented from the judgment of the court; but to the doctrine declared in the above citation he
agreed, and he may add, that it received the approval of all the judges. It is the only doctrine consistent with proper protection
to citizens of other States. If, without personal service, judgments in personam, obtained ex parte against non-residents and
absent parties, upon mere publication of process, which, in the great majority of cases, would never be seen by the parties
interested, could be upheld and enforced, they would be the constant instruments of fraud and oppression. Judgments for all
sorts of claims upon contracts and for torts, real or pretended, would be thus obtained, under which property would be seized,
when the evidence of the transactions upon which they were founded, if they ever had any existence, had perished.
24
Substituted service by publication, or in any other authorized form, may be sufficient to inform parties of the object of
proceedings taken where property is once brought under the control of the court by seizure or some equivalent act. The law
assumes that property is always in the possession of its owner, in person or by agent; and it proceeds upon the theory that its
seizure will inform him, not only that it is taken into the custody of the court, but that he must look to any proceedings
authorized by law upon such seizure for its condemnation and sale. Such service may also be sufficient in cases where the
object of the action is to reach and dispose of property in the State, or of some interest therein, by enforcing a contract or a
lien respecting the same, or to partition it among different owners, or, when the public is a party, to condemn and appropriate
it for a public purpose. In other words, such service may answer in all actions which are substantially proceedings  in rem. But
where the entire object of the action is to determine the personal rights and obligations of the defendants, that is, where the
suit is merely in personam, constructive service in this form upon a non-resident is ineffectual for any purpose. Process from
the tribunals of one State cannot run into another State, and summon parties there domiciled to leave its territory and respond
to proceedings against them. Publication of process or notice within the State where the tribunal sits cannot create any greater
obligation upon the non-resident to appear. Process sent to him out of the State, and process published within it, are equally
unavailing in proceedings to establish his personal liability.
25
The want of authority of the tribunals of a State to adjudicate upon the obligations of non-residents, where they have no
property within its limits, is not denied by the court below: but the position is assumed, that, where they have property within
the State, it is immaterial whether the property is in the first instance brought under the control of the court by attachment or
some other equivalent act, and afterwards applied by its judgment to the satisfaction of demands against its owner; or such
demands be first established in a personal action, and the property of the non-resident be afterwards seized and sold on
execution. But the answer to this position has already been given in the statement, that the jurisdiction of the court to inquire
into and determine his obligations at all is only incidental to its jurisdiction over the property. Its jurisdiction in that respect
cannot be made to depend upon facts to be ascertained after it has tried the cause and rendered the judgment. If the judgment
be previously void, it will not become valid by the subsequent discovery of property of the defendant, or by his subsequent
acquisition of it. The judgm nt, if void when rendered, will always remain void: it cannot occupy the doubtful position of
being valid if property be found, and void if there be none. Even if the position assumed were confined to cases where the
non-resident defendant possessed property in the State at the commencement of the action, it would still make the validity of
the proceedings and judgment depend upon the question whether, before the levy of the execution, the defendant had or had
not disposed of the property. If before the levy the property should be sold, then, according to this position, the judgment
would not be binding. This doctrine would introduce a new element of uncertainty in judicial proceedings. The contrary is the
law: the validity of every judgment depends upon the jurisdiction of the court before it is rendered, not upon what may occur
subsequently. In Webster v. Reid, reported in 11th of Howard, the plaintiff claimed title to land sold under judgments
recovered in suits brought in a territorial court of Iowa, upon publication of notice under a law of the territory, without service
of process; and the court said:—:——
26
'These suits were not a proceeding in rem against the land, but were in personam against the owners of it. Whether they all
resided within the territory or not does not appear, nor is it § matter of any importance. No person is required to answer in a
suit on whom process has not been served, or whose property has not been attached. In this case, there was no personal notice,
nor an attachment or other proceeding against the land, until after the judgments. The judgments, therefore, are nullities, and
did not authorize the executions on which the land was sold.' The force and effect of judgments rendered against non-residents
without personal service of process upon them, or their voluntary appearance, have been the subject of frequent consideration
in the courts of the United States and of the several States, as attempts have been made to enforce suc judgments in States
other than those in which they were rendered, under the provision of the Constitution requiring that 'full faith and credit shall
be given in each State to the public acts, records, and judicial proceedings of every other State;' and the act of Congress
providing for the mode of authenticating such acts, records, and proceedings, and declaring that, when thus authenticated,
'they shall have such faith and credit given to them in every court within the United States as they have by law or usage in the
courts of the State from which they are or shall or taken.' In the earlier cases, it was supposed that the act gave to all
judgments the same effect in other States which they had by law in the State where rendered. But this view was afterwards
qualified so as to make the act applicable only when the court rendering the judgment had jurisdiction of the parties and of the
subject-matter, and not to preclude an inquiry into the jurisdiction of the court in which the judgment was rendered, or the
right of the State itself to exercise authority over the person or the subject-matter. M'Elmoyle v. Cohen, 13 Pet. 312. In the
case of D'Arcy v. Ketchum, reported in the 11th of Howard, this view is stated with great clearness. That was an action in the
Circuit Court of the United States for Louisiana, brought upon a judgment rendered in New York under a State statute, against
two joint debtors, only one of whom had been served with process, the other being a non-resident of the State. The Circuit
Court held the judgment conclusive and binding upon the non-resident not served with process; but this court reversed its
decision, observing, that it was a familiar rule that countries foreign to our own disregarded a judgment merely against the
person, where the defendant had not been served with process nor had a day in court; that national comity was never thus
extended; that the proceeding was deemed an illegitimate assumption of power, and resisted as mere abuse; that no faith and
credit or force and e fect had been given to such judgments by any State of the Union, so far as known; and that the State
courts had uniformly, and in many instances, held them to be void. 'The international law,' said the court,' as it existed among
the States in 1790, was that a judgment rendered in one State, assuming to bind the person of a citizen of another, was void
within the foreign State, when the defendant had not been served with process or voluntarily made defence; because neither
the legislative jurisdiction nor that of courts of justice had binding force.' And the court held that the act of Congress did not
intend to declare a new rule, or to embrace judicial records of this description. As was stated in a subsequent case, the doctrine
of this court is, that the act 'was not designed to displace that principle of natural justice which requires a person to have
notice of a suit before he can be conclusively bound by its result, nor those rules of public law which protect persons and
property within one State from the exercise of jurisdiction over them by another.' The Lafayette Insurance Co. v. French et al.,
18 How. 404.
27
This whole subject has been very fully and learnedly considered in the recent case of Thompson v. Whitman, 18 Wall. 457,
where all the authorities are carefully reviewed and distinguished, and the conclusion above stated is not only reaffirmed, but
the doctrine is asserted, that the record of a judgment rendered in another State may be contradicted as to the facts necessary
to give the court jurisdiction against its recital of their existence. In all the case brought in the State and Federal courts, where
attempts have been made under the act of Congress to give effect in one State to personal judgments rendered in another State
against non-residents, without service upon them, or upon substituted service by publication, or in some other form, it has
been held, without an exception, so far as we are aware, that such judgments were without any binding force, except as to
property, or interests in property, within the State, to reach and affect which was the object of the action in which the
judgment was rendered, and which property was brought under control of the court in connection with the process against the
person. The proceeding in such cases, though in the form of a personal action, has been uniformly treated, where service was
not obtained, and the party did not voluntarily appear, as effectual and binding merely as a proceeding in rem, and as having
no operation beyond the disposition of the property, or some interest therein. And the reason assigned for this conclusion has
been that which we have already stated, that the tribunals of one State have no jurisdiction over persons beyond its limits, and
can inquire only into their obligations to its citizens when exercising its conceded jurisdiction over their property within its
limits. In Bissell v. Briggs, decided by the Supreme Court of Massachusetts as early as 1813, the law is stated substantially in
conformity with these views. In that case, the court considered at length the effect of the constitutional provision, and the act
of Congress mentioned, and after stating that, in order to entitle the judgment rendered in any court of the United States to the
full faith and credit mentioned in the Constitution, the court must have had jurisdiction not only of the cause, but of the
parties, it proceeded to illustrate its position by observing, that, where a debtor living in one State has goods, effects, and
credits in another, his creditor living in the other State may have the property attached pursuant to its laws, and, on recovering
judgment, have the property applied to its satisfaction; and that the party in whose hands the property was would be protected
by the judgment in the State of the debtor against a suit for it, because the court rendering the judgment had jurisdiction to that
extent; but that if the property attached were insufficient to satisfy the judgment, and the creditor sh uld sue on that judgment
in the State of the debtor, he would fail, because the defendant was not amenable to the court rendering the judgment. In other
words, it was held that over the property within the State the court had jurisdiction by the attachment, but had none over his
person; and that any determination of his liability, except so far as was necessary for the disposition of the property, was
invalid.
28
In Kilbourn v. Woodworth, 5 Johns. (N. Y.) 37, an action of debt was brought in New York upon a personal judgment
recovered in Massachusetts. The defendant in that judgment was not served with process; and the suit was commenced by the
attachment of a bedstead belonging to the defendant, accompanied with a summons to appear, served on his wife after she had
left her place in Massachusetts. The court held that the attachment bound only the property attached as a proceeding in rem,
and that it could not bind the defendant, observing, that to bind a defendant personally, when he was never personally
summoned or had notice of the proceeding, would be contrary to the first principles of justice, repeating the language in that
respect of Chief Justice DeGrey, used in the case of Fisher v. Lane, 3 Wils. 297, in 1772. See also Borden v. Fitch, 15 Johns.
(N. Y.) 121, and the cases there cited, and Harris v. Hardeman et al., 14 How. 334. To the same purport decisions are found
in all the State courts. In several of the cases, the decision has been accompanied with the observation that a personal
judgment thus recovered has no binding force without the State in which it is rendered, implying that in such State it may be
valid and binding. But if the court has no jurisdiction over the person of the defendant by reason of his nonresidence, and,
consequently, no authority to pass upon his personal rights and obligations; if the whole proceeding, without service upon him
or his appearance, is coram non judice and void; if to hold a defendant bound by such a judgment is contrary to the first
principles of justice,—it is difficult to see how the judgment can legitimately have any force within the State. The language
used can be justified only on the ground that there was no mode of directly reviewing such judgment or impeaching its
validity within the State where rendered; and that, therefore, it could be called in question only when its enforcement was
elsewhere attempted. In later cases, this language is repeated with less frequency than formerly, it beginning to be considered,
as it always ought to have been, that a judgment which can be treated in any State of this Union as contrary to the first
principles of justice, and as an absolute nullity, because rendered without any jurisdiction of the tribunal over the party, is not
entitled to any respect in the State where rendered. Smith v. McCutchen, 38 Mo. 415; Darrance v. Preston, 18 Iowa,
396; Hakes v. Shupe, 27 id. 465; Mitchell's Administrator v. Gray, 18 Ind. 123.
29
Be that as it may, the courts of the United States are not required to give effect to judgments of this character when any right
is claimed under them. Whilst they are not foreign tribunals in their relations to the State courts, they are tribunals of a
different sovereignty, exercising a distinct and independent jurisdiction, and are bound to give to the judgments of the State
courts only the same faith and credit which the courts of another State are bound to give to them.
30
Since the adoption of the Fourteenth Amendment to the Federal Constitution, the validity of such judgments may be directly
questioned, and their enforcement in the State resisted, on the ground that proceedings in a court of justice to deter mine the
personal rights and obligations of parties over whom that court has no jurisdiction do not constitute due process of law.
Whatever difficulty may be experienced in giving to those terms a definition which will embrace every permissible exertion
of power affecting private rights, and exclu e such as is forbidden, there can be no doubt of their meaning when applied to
judicial proceedings. They then mean a course of legal proceedings according to those rules and principles which have been
established in our systems of jurisprudence for the protection and enforcement of private rights. To give such proceedings any
validity, there must be a tribunal competent by its constitution that is, by the law of its creation—to pass upon the subject-
matter of the suit; and, if that involves merely a determination of the personal liability of the defendant, he must be brought
within its jurisdiction by service of process within the State, or his voluntary appearance.
31
Except in cases affecting the personal status of the plaintiff, and cases in which that mode of service may be considered to
have been assented to in advance, as hereinafter mentioned, the substituted service of process by publication, allowed by the
law of Oregon and by similar laws in other States, where actions are brought against non-residents, is effectual only where, in
connection with process against the person for commencing the action, property in the State is brought under the control of
the court, and subjected to its disposition by process adapted to that purpose, or where the judgment is sought as a means of
reaching such property or affecting some interest therein; in other words, where the action is in the nature of a proceeding in
rem. As stated by Cooley in his Treatise on Constitutional Limitations, 405, for any other purpose than to subject the property
of a non-resident to valid claims against him in the State, 'due process of law would require appearance or personal service
before the defendant could be personally bound by any judgment rendered.'
32
It is true that, in a strict sense, a proceeding in rem is one taken directly against property, and has for its object the disposition
of the property, without reference to the title of individual claimants; but, in a larger and more general sense, the terms are
applied to actions between parties, where the direct object is to reach and dispose of property owned by them, or of some
interest therein. Such are cases commenced by attachment against the property of debtors, or instituted to partition real estate,
foreclose a mortgage, or enforce a lien. So far as they affect property in the State, they are substantially proceedings  in rem in
the broader sense which we have mentioned.
33
It is hardly necessary to observe, that in all we have said we have had reference to proceedings in courts of first instance, and
to their jurisdiction, and not to proceedings in an appellate tribunal to review the action of such courts. The latter may be
taken upon such notice, personal or constructive, as the State creating the tribunal may provide. They are considered as rather
a continuation of the original litigation than the commencement of a new action. Nations et al. v. Johnson et al., 24 How. 195.
34
It follows from the views expressed that the personal judgment recovered in the State court of Oregon against the plaintiff
herein, then a non-resident of the State, was without any validity, and did not authorize a sale of the property in controversy.
35
To prevent any misapplication of the views expressed in this opinion, it is proper to observe that we do not mean to assert, by
any thing we have said, that a State may not authorize proceedings to determine the status of one of its citizens towards a non-
resident, which would be binding within the State, though made without service of process or personal notice to the non-
resident. The jurisdiction which every State possesses to determine the civil status and capacities of all its inhabitants involves
authority to prescribe the conditions on which proceedings affecting them may be commenced and carried on within its
territory. The State, for example, has absolute right to prescribe the conditions upon which the marriage relation between its
own citizens shall be created, and the causes for w ich it may be dissolved. One of the parties guilty of acts for which, by the
law of the State, a dissolution may be granted, may have removed to a State where no dissolution is permitted. The
complaining party would, therefore, fail if a divorce were sought in the State of the defendant; and if application could not be
made to the tribunals of the complainant's domicile in such case, and proceedings be there instituted without personal service
of process or personal notice to the offending party, the injured citizen would be without redress. Bish. Marr. and Div., sect.
156.
36
Neither do we mean to assert that a State may not require a non-resident entering into a partnership or association within its
limits, or making contracts enforceable there, to appoint an agent or representative in the State to receive service of process
and notice in legal proceedings instituted with respect to such partnership, association, or contracts, or to designate a place
where such service may be made and notice given, and provide, upon their failure, to make such appointment or to designate
such place that service may be made upon a public officer designated for that purpose, or in some other prescribed way, and
that judgments rendered upon such service may not be binding upon the non-residents both within and without the State. As
was said by the Court of Exchequer in Vallee v. Dumergue, 4 Exch. 290, 'It is not contrary to natural justice that a man who
has agreed to receive a particular mode of notification of legal proceedings should be bound by a judgment in which that
particular mode of notification has been followed, even though he may not have actual notice of them.' See also The Lafayette
Insurance Co. v. French et al., 18 How. 404, and Gillespie v. Commercial Mutual Marine Insurance Co., 12 Gray (Mass.),
201. Nor do we doubt that a State, on creating corporations or other institutions for pecuniary or charitable purposes, may
provide a mode in which their conduct may be investigated, their obligations enforced, or their charters revoked, which shall
require other than personal service upon their officers or members. Parties becoming members of such corporations or
institutions would hold their interest subject to the conditions prescribed by law. Copin v. Adamson, Law Rep. 9 Ex. 345.
37
In the present case, there is no feature of this kind, and, consequently, no consideration of what would be the effect of such
legislation in enforcing the contract of a non-resident can arise. The question here respects only the validity of a money
judgment rendered in one State, in an action upon a simple contract against the resident of another, without service of process
upon him, or his appearance therein.
38
Judgment affirmed.
39
MR. JUSTICE HUNT dissenting.
40
I am compelled to dissent from the opinion and judgment of the court, and, deeming the question involved to be important, I
take leave to record my views upon it.
41
The judgment of the court below was placed upon the ground that the provisions of the statute were not complied with. This is
of comparatively little importance, as it affects the present case only. The judgment of this court is based upon the theory that
the legislature had no power to pass the law in question; that the principle of the statute is vicious, and every proceeding under
it void. It, therefore, affects all like cases, past and future, and in every State.
42
The precise case is this: A statute of Oregon authorizes suits to be commenced by the service of a summons. In the case of a
non-resident of the State, it authorizes the service of the summons to be made by publication for not less than six weeks, in a
newspaper published in the county where the action is commenced. A copy of the summons must also be sent by mail,
directed to the defendant at his place of residence, unless it be shown that the residence is not known and cannot be
ascertained. It authorizes a judgment and execution to be obtained in such proceeding. Judgment in a suit commenced by one
Mit hell in the Circuit Court of Multnomah County, where the summons was thus served, was obtained against Neff, the
present plaintiff; and the land in question, situate in Multnomah County, was bought by the defendant Pennoyer, at a sale
upon the judgment in such suit. This court now holds, that, by reason of the absence of a personal service of the summons on
the defendant, the Circuit Court of Oregon had no jurisdiction, its judgment could not authorize the sale of land in said
county, and, as a necessary result, a purchaser of land under it obtained no title; that, as to the former owner, it is a case of
depriving a person of his property without due process of law.
43
In my opinion, this decision is at variance with the long-established practice under the statutes of the States of this Union, is
unsound in principle, and, I fear, may be disastrous in its effects. It tends to produce confusion in titles which have been
obtained under similar statutes in existence for nearly a century; it invites litigation and strife, and over throws a well-settled
rule of property.
44
The result of the authorities on the subject, and the sound conclusions to be drawn from the principles which should govern
the decision, as I shall endeavor to show, are these:——
45
1. A sovereign State must necessarily have such control over the real and personal property actually being within its limits, as
that it may subject the same to the payment of debts justly due to its citizens.
46
2. This result is not altered by the circumstance that the owner of the property is non-resident, and so absent from the State
that legal process cannot be served upon him personally.
47
3. Personal notice of a proceeding by which title to property is passed is not indispensable; it is competent to the State to
authorize substituted service by publication or otherwise, as the commencement of a suit against non-residents, the judgment
in which will authorize the sale of property in such State.
48
4. It belongs to the legislative power of the State to determine what shall be the modes and means proper to be adopted to give
notice to an absent defendant of the commencement of a suit; and if they are such as are reasonably likely to communicate to
him information of the proceeding against him, and are in good faith designed to give him such information, and an
opportunity to defend is provided for him in the event of his appearance in the suit, it is not competent to the judiciary to
declare that such proceeding is void as not being by due process of law.
49
5. Whether the property of such non-resident shall be seized upon attachment as the commencement of a suit which shall be
carried into judgment and execution, upon which it shall then be sold, or whether it shall be sold upon an execution and
judgment without such preliminary seizure, is a matter not of constitutional power, but of municipal regulation only.
50
To say that a sovereign State has the power to ordain that the property of non-residents within its territory may be subjected to
the payment of debts due to its citizens, if the property is levied upon at the commencement of a suit, but that it has not such
power if the property is levied upon at the end of the suit, is a refinement and a depreciation of a great general principle that,
in my judgment, cannot be sustained.
51
A reference to the statutes of the different States, and to the statutes of the United States, and to the decided cases, and a
consideration of the principles on which they stand, will more clearly exhibit my view of the question.
52
The statutes are of two classes: first, those which authorize the commencement of actions by publication, accompanied by an
attachment which is levied upon property, more or less, of an absent debtor; second, those giving the like mode of
commencing a suit without an attachment.
53
The statute of Oregon relating to publication of summons, supra, p. 718, under which the question arises, is nearly a transcript
of a series of provisions contained in the New York statute, adopte thirty years since. The latter authorizes the commencement
of a suit against a non-resident by the publication of an order for his appearance, for a time not less than six weeks, in such
newspapers as shall be most likely to give notice to him, and the deposit of a copy of the summons and complaint in the post-
office, directed to him at his residence, if it can be ascertained; and provides for the allowance to defend the action before
judgment, and within seven years after its rendition, upon good cause shown, and that, if the defence be successful, restitution
shall be ordered. It then declares: 'But the title to property sold under such judgment to a purchaser in good faith shall not be
thereby affected.' Code, sects. 34, 35; 5 Edm. Rev. Stat. of N. Y., pp. 37-39.
54
Provisions similar in their effect, in authorizing the commencement of suits by attachment against absent debtors, in which all
of the property of the absent debtor, real and personal, not merely that seized upon the attachment, is placed under the control
of trustees, who sell it for the benefit of all the creditors, and make just distribution thereof, conveying absolute title to the
property sold have been upon the statutebook of New York for more than sixty years. 2 id., p. 2 and following; 1 Rev. Laws,
1813, p. 157.
55
The statute of New York, before the Code, respecting proceedings in chancery where absent debtors are parties, had long been
in use in that State, and was adopted in all cases of chancery jurisdiction. Whenever a defendant resided out of the State, his
appearance might be compelled by publication in the manner pointed out. A decree might pass against him, and performance
be compelled by sequestration of his real or personal property, or by causing possession of specific property to be delivered,
where that relief is sought. The relief was not confined to cases of mortgage foreclosure, or where there was a specific claim
upon the property, but included cases requiring the payment of money as well. 2 Edm. Rev. Stat. N. Y., pp. 193-195; 186, m.
56
I doubt not that many valuable titles are now held by virtue of the provisions of these statutes.
57
The statute of California authorizes the service of a summons on a non-resident defendant by publication, permitting him to
come in and defend upon the merits within one year after the entry of judgment. Code, sects. 10,412, 10,473. In its general
character it is like the statutes of Oregon and New York, already referred to.
58
The Code of Iowa, sect. 2618, that of Nevada, sect. 1093, and that of Wisconsin, are to the same general effect. The Revised
Statutes of Ohio, sects. 70, 75, 2 Swan & Critchfield, provide for a similar publication, and that the defendant may come in to
defend within five years after the entry of the judgment, but that the title to property held by any purchaser in good faith under
the judgment shall not be affected thereby.
59
The attachment laws of New Jersey, Nixon Dig. (4th ed.), p. 55, are like those of New York already quoted, by which title
may be transferred to all the property of a non-resident debtor. And the provisions of the Pennsylvania statute regulating
proceedings in equity, Brightly's Purden's Dig., p. 5988, sects. 51, 52, give the same authority in substance, and the same
result is produced as under the New York statute.
60
Without going into a wearisome detail of the statutes of the various States, it is safe to say that nearly every State in the Union
provides a process by which the lands and other property of a non-resident debtor may be subjected to the payment of his
debts, through a judgment or decree against the owner, obtained upon a substituted service of the summons or writ
commencing the action.
61
The principle of substituted service is also a rule of property under the statutes of the United States.
62
The act of Congress 'to amend the law of the District of Columbia in relation to judicial proceedings therein,' approved Feb.
23, 1867, 14 Stat. 403, contains the same general provisions. It enacts (sect. 7) that p blication may be substituted for personal
service, when the defendant cannot be found, in suits for partition, divorce, by attachment, for the foreclosure of mortgages
and deeds of trust, and for the enforcement of mechanics' liens and all other liens against real or personal property, and in all
actions at law or in equity having for their immediate object the enforcement or establishment of any lawful right, claim, or
demand to or against any real or personal property within the jurisdiction of the court.
63
A following section points out the mode of proceeding, and closes in these words:——
64
'The decree, besides subjecting the thing upon which the lien has attached to the satisfaction of the plaintiff's demand against
the defendant, shall adjudge that the plaintiff recover his demand against the defendant, and that he may have execution
thereof as at law.' Sect. 10.
65
A formal judgment against the debtor is thus authorized, by means of which any other property of the defendant within the
jurisdiction of the court, in addition to that which is the subject of the lien, may be sold, and the title transferred to the
purchaser.
66
All these statutes are now adjudged to be unconstitutional and void. The titles obtained under them are not of the value of the
paper on which they are recorded, except where a preliminary attachment was issued.
67
Some of the statutes and several of the authorities I cite go further than the present case requires. In this case, property lying in
the State where the suit was brought, owned by the non-resident debtor, was sold upon the judgment against him; and it is on
the title to that property that the controversy turns.
68
The question whether, in a suit commenced like the present one, a judgment can be obtained, which, if sued upon in another
State, will be conclusive against the debtor, is not before us; nor does the question arise as to the faith and credit to be given in
one State to a judgment recovered in another. The learning on that subject is not applicable. The point is simply whether land
lying in the same State may be subjected to process at the end of a suit thus commenced.
69
It is here necessary only to maintain the principle laid down by Judge Cooley in his work on Constitutional Limitations, p.
404, and cited by Mr. Justice Field in Galpin v. Page, 3 Sawyer, 93, in these words:——
70
'The fact that process was not personally served is a conclusive objection to the judgment as a personal claim, unless the
defendant caused his appearance to be entered in the attachment proceedings. Where a party has property in a State, and
resides elsewhere, his property is justly subject to all valid claims that may exist against him there; but beyond this, due
process of law would require appearance or personal service before the defendant could be personally bound by any judgment
rendered.'
71
The learned author does not make it a condition that there should be a preliminary seizure of the property by attachment; he
lays down the rule that all a person's property in a State may be subjected to all valid claims there existing against him.
72
The objection now made, that suits commenced by substituted service, as by publication, and judgments obtained without
actual notice to the debtor, are in violation of that constitutional provision that no man shall be deprived of his property
'without due process of law,' has often been presented.
73
In Matter of the Empire City Bank, 18 N. Y. 199, which was a statutory proceeding to establish and to enforce the
responsibility of the stockholders of a banking corporation, and the proceedings in which resulted in a personal judgment
against the stockholders for the amount found due, the eminent and learned Judge Denio, speaking as the organ of the Court
of Appeals, says:
74
'The notice of hearing is to be personal, or by service at the residence of the parties who live in the county, or by
advertisement as to others. It may, therefore, happen that some of the persons who are made liable will not have received
actual notice, and the question is, whether personal service of process or actual notice to the party is essential to constitute due
process of law. We have not been referred to any adjudication holding that no man's right of property can be affected by
judicial proceedings unless he have personal notice. It may be admitted that a statute which should authorize any debt or
damages to be adjudged against a person upon a purely ex parte proceeding, without a pretence of notice or any provision for
defending, would be a violation of the Constitution, and be void; but where the legislature has prescribed a kind of notice by
which it is reasonably probable that the party proceeded against will be apprised of what is going on against him, and an
opportunity is afforded him to defend, I am of the opinion that the courts have not the power to pronounce the proceeding
illegal. The legislature has uniformly acted upon that understanding of the Constitution.'
75
Numerous provisions of the statutes of the State are commented upon, after which he proceeds:——
76
'Various prudential regulations are made with respect to these remedies; but it may possibly happen, notwithstanding all these
precautions, that a citizen who owes nothing, and has done none of the acts mentioned in the statute, may be deprived of his
estate, without any actual knowledge of the process by which it has been taken from him. If we hold, as we must in order to
sustain this legislation, that the Constitution does not positively require personal notice in order to constitute a legal
proceeding due process of law, it then belongs to the legislature to determine whether the case calls for this kind of
exceptional legislation, and what manner of constructive notice shall be sufficient to reasonably apprise the party proceeded
against of the legal steps which are taken against him.' In Happy v. Mosher, 48 id. 313, the court say:——
77
'An approved definition of due process of law is 'law in its regular administration through courts of justice.' 2 Kent, Com. 13.
It need not be a legal proceeding according to the course of the common law, neither must there be personal notice to the
party whose property is in question. It is sufficient if a kind of notice is provided by which it is reasonably probable that the
party proceeded against will be apprised of what is going on against him, and an opportunity afforded him to defend.'
78
The same language is used in Westervelt v. Gregg, 12 id. 202, and in Campbell v. Evans, 45 id.
356. Compbell v. Evans and The Empire City Bank are cases not of proceedings against property to enforce a lien or claim; but
in each of them a personal judgment in damages was rendered against the party complaining.
79
It is undoubtedly true, that, in many cases where the question respecting due process of law has arisen, the case in hand was
that of a proceeding in rem. It is true, also, as is asserted, that the process of a State cannot be supposed to run beyond its own
territory. It is equally true, however, that, in every instance where the question has been presented, the validity of substituted
service, which is used to subject property within the State belonging to a non-resident to a judgment obtained by means
thereof, has been sustained. I have found no case in which it is adjudged that a statute must require a preliminary seizure of
such property as necessary to the validity of the proceeding against it, or that there must have been a previous specific lien
upon it; that is, I have found no case where such has been the judgment of the court upon facts making necessary the decision
of the point. On the contrary, in the case of the attachment laws of New York and of New Jersey, which distribute all of the
non-resident's property, not merely that levied on by the attachment, and in several of the reported cases already referred to,
where the judgment was sustained, neither of these preliminary facts existed.
80
The case of Galpin v. Page, reported in 18 Wall. 350, and a ain in 3 Sawyer, 93, is cited in hostility to the views I have
expressed. There may be general expressions which will justify this suggestion, but the judgment is in harmony with those
principles. In the case as reported in this court, it was held that the title of the purchaser under a decree against a non-resident
infant was invalid, for two reasons: 1st, That there was no jurisdiction of the proceeding under the statute of California, on
account of the entire absence of an affidavit of non-residence, and of diligent inquiry for the residence of the debtor; 2d, the
absence of any order for publication in Eaton's case,—both of which are conditions precedent to the jurisdiction of the court
to take any action on the subject. The title was held void, also, for the reason that the decree under which it was obtained had
been reversed in the State court, and the title was not taken at the sale, nor held then by a purchaser in good faith, the purchase
being made by one of the attorneys in the suit, and the title being transferred to his law partner after the reversal of the decree.
The court held that there was a failure of jurisdiction in the court under which the plaintiff claimed title, and that he could not
recover. The learned justice who delivered the opinion in the Circuit Court and in this court expressly affirms the authority of
a State over persons not only, but property as well, within its limits, and this by means of a substituted service. The judgment
so obtained, he insists, can properly be used as a means of reaching property within the State, which is thus brought under the
control of the court and subjected to its judgment. This is the precise point in controversy in the present action.
81
The case of Cooper v. Reynolds, 10 Wall. 308, is cited for the same purpose. There the judgment of the court below, refusing
to give effect to a judgment obtained upon an order of publication against a non-resident, was reversed in this court. The suit
was commenced, or immediately accompanied (it is not clear which), by an attachment which was levied upon the real estate
sold, and for the recovery of which this action was brought. This court sustained the title founded upon the suit commenced
against the non-resident by attachment. In the opinion delivered in that case there may be remarks, by way of argument or
illustration, tending to show that a judgment obtained in a suit not commenced by the levy of an attachment will not give title
to land purchased under it. They are, however, extra-judicial, the decision itself sustaining the judgment obtained under the
State statute by publication.
82
Webster v. Reid, 11 How. 437, is also cited. There the action involved the title to certain lands in the State of Iowa, being
lands formerly belonging to the half-breeds of the Sac and Fox tribes; and title was claimed against the Indian right under the
statutes of June 2, 1838, and January, 1839. By these statutes, commissioners were appointed who were authorized to hear
claims for accounts against the Indians, and commence actions for the same, giving a notice thereof of eight weeks in the
Iowa 'Territorial Gazette,' and to enter up judgments which should be a lien on the lands. It was provided that it should not be
necessary to name the defendants in the suits, but the words 'owners of the half-breed lands lying in Lee County' should be a
sufficient designation of the defendants in such suits; and it provided that the trials should be by the court, and not by a jury. It
will be observed that the lands were not only within the limits of the territory of Iowa, but that all the Indians who were made
defendants under the name mentioned were also residents of Iowa, and, for aught that appears to the contrary, of the very
county of Lee in which the proceeding was taken. Non-residence was not a fact in the case. Moreover, they were Indians, and,
presumptively, not citizens of any State; and the judgments under which the lands were sold were rendered by the
commissioners for their own servic § under the act.
83
The court found abundant reasons, six in number, for refusing to sustain the title thus obtained. The act was apparently an
attempt dishonestly to obtain the Indian title, and not intended to give a substitution for a personal service which would be
likely, or was reasonably designed, to reach the persons to be affected.
84
The case of Voorhees v. Jackson, 10 Pet. 449, affirmed the title levied under the attachment laws of Ohio, and laid down the
principle of assuming that all had been rightly done by a court having general jurisdiction of the subject-matter.
85
In Cooper v. Smith, 25 Iowa, 269, it is said, that where no process is served on the defendant, nor property attached, nor
garnishee charged, nor appearance entered, a judgment based on a publication of the pendency of the suit will be void, and
may be impeached, collaterally or otherwise, and forms no bar to a recovery in opposition to it, nor any foundation for a title
claimed under it. The language is very general, and goes much beyond the requirement of the case, which was an appeal from
a personal judgment obtained by publication against the defendant, and where, as the court say, the petition was not properly
verified. All that the court decided was that this judgment should be reversed. This is quite a different question from the one
before us. Titles obtained by purchase at a sale upon an erroneous judgment are generally good, although the judgment itself
be afterwards reversed. McGoon v. Scales, 9 Wall. 311.
86
In Darrance v. Preston, 18 Iowa, 396, the distinction is pointed out between the validity of a judgment as to the amount
realized from the sale of property within the jurisdiction of the court and its validity beyond that amount.  Picquet v. Swan, 5
Mas. 35; Bissell v. Briggs 9 Mass. 462; Ewer v. Coffin, 1 Cush. (Mass.) 23, are cited; but neither of them in its facts touches
the question before us.
87
In Drake on Attachment, the rule is laid down in very general language; but none of the cases cited by him will control the
present case. They are the following:——
88
Eaton v. Bridger, 33 N. H. 228, was decided upon the peculiar terms of the New Hampshire statute, which forbids the entry of
a judgment, unless the debtor was served with process, or actually appeared and answered in the suit. The court say the
judgment was 'not only unauthorized by law, but rendered in violation of its express provisions.'
89
Johnson v. Dodge was a proceeding in the same action to obtain a reversal on appeal of the general judgment, and did not
arise upon a contest for property sold under the judgment. Carleton v. Washington Insurance Co., 35 id. 162,
and Bruce v. Cloutman, 45 id. 37, are to the same effect and upon the same statute.
90
Smith v. McCutchen, 38 Mo. 415, was a motion in the former suit to set aside the execution by a garnishee, and it was held
that the statute was intended to extend to that class of cases. Abbott v. Shepard, 44 id. 273, is to the same effect, and is based
upon Smith v. McCutchen, supra.
91
So in Eastman v. Wadleigh, 65 Me. 251, the question arose in debt on the judgment, not upon a holding of land purchased
under the judgment. It was decided upon the express language of the statute of Maine, strongly implying the power of the
legislature to make it otherwise, had they so chosen.
92
It is said that the case where a preliminary seizure has been made, and jurisdiction thereby conferred, differs from that where
the property is seized at the end of the action, in this: in the first case, the property is supposed to be so near to its owner, that,
if seizure is made of it, he will be aware of the fact, and have his opportunity to defend, and jurisdiction of the person is thus
obtained. This, however, is matter of discretion and of judgment only. Such seizure is not in itself notice to the defendant, and
it is not certain that he will by that means receive notice. Adopted as a means of communicating it, and although a very good
means, it is not the only one, nor necessarily better than a publication of the pendency of the suit, made with an honest
intention to reach the debtor. Who shall assume to say to the legislature, that if it authorizes a particular mode of giving notice
to a debtor, its action may be sustained, but, if it adopts any or all others, its action is unconstitutional and void? The rule is
universal, that modes, means, questions of expediency or necessity, are exclusively within the judgment of the legislature, and
that the judiciary cannot review them. This has been so held in relation to a bank of the United States, to the legal-tender act,
and to cases arising under other provisions of the Constitution.
93
In Jarvis v. Barrett, 14 Wis. 591, such is the holding. The court say:——
94
'The essential fact on which the publication is made to depend is property of the defendant in the State, and not whether it has
been attached. . . . There is no magic about the writ [of attachment] which should make it the exclusive remedy. The same
legislative power which devised it can devise some other, and declare that it shall have the same force and effect. The
particular means to be used are always within the control of the legislature, so that the end be not beyond the scope of
legislative power.'
95
If the legislature shall think that publication and deposit in the post-office are likely to give the notice, there seems to be
nothing in the nature of things to prevent their adoption in lieu of the attachment. The point of power cannot be thus
controlled.
96
That a State can subject land within its limits belonging to non-resident owners to debts due to its own citizens as it can
legislate upon all other local matters; that it can prescribe the mode and process by which it is to be reached,—seems to me
very plain.
97
I am not willing to declare that a sovereign State cannot subject the land within its limits to the payment of debts due to its
citizens, or that the power to do so depends upon the fact whether its statute shall authorize the property to be levied upon at
the commencement of the suit or at its termination. This is ia matter of detail, and I am of opinion, that if reasonable notice be
given, with an opportunity to defend when appearance is made, the question of power will be fully satisfied.
 Republic of the Philippines
SUPREME COURT
Manila

EN BANC

G.R. No. 47517             June 27, 1941

IDONAH SLADE PERKINS, petitioner, 

vs.
MAMERTO ROXAS, ET AL., respondents.

Alva J. Hill for petitioner.

DeWitt, Perkins & Ponce Enrile for respondent Judge and respondent Perkins.
Ross, Lawrence, Selph & Carrascoso, Jr., for respondent Benguet Consolidated Mining Co.

LAUREL, J.:

On July 5, 1938, the respondent Eugene Arthur Perkins, filed a complaint in the Court of First Instance of Manila against the
Benguet Consolidated Mining Company for the recovery of the sum of P71,379.90, consisting of dividends which have been
declared and made payable on 52,874 shares of stock registered in his name, payment of which was being withheld by the
company, and for the recognition of his right to the control and disposal of said shares, to the exclusion of all others. To the
complaint, the company filed its answer, alleging, by way of defense, that the withholding of plaintiff's right to the disposal
and control of the shares was due to certain demands made with respect to said shares by the petitioner herein. Idonah Slade
Perkins, and by one George H. Engelhard. The answer prays that the adverse claimants be made parties to the action and
served with notice thereof by publication, and that thereafter all such parties be required to interplead and settle the rights
among themselves.

On September 5, 1938, the trial court ordered the respondent, Eugene Arthur Perkins, to include in his complaint as parties
defendants petitioner, Idonah Slade Perkins, and George H. Engelhard. The complaint was accordingly amended and in
addition to the relief prayed for in the original complaint, respondent Perkins prayed that petitioner Idonah Slade Perkins and
George H. Engelhard be adjudged without interest in the shares of stock in question and excluded from any claim they assert
thereon. Thereafter, summons by publication were served upon the non-resident defendants, Idonah Slade Perkins and George
H. Engelhard, pursuant to the order of the trial court. On December 9, 1938, Engelhard filed his answer to the amended
complaint, and on January 8, 1940, petitioner's objection to the court's jurisdiction over her person having been overruled by
the trial court and by this court in G. R. No. 46831, petitioner filed her answer with a cross-complaint in which she sets up a
judgment allegedly obtained by her against respondent, Eugene Arthur Perkins, from the Supreme Court of the State of New
York, wherein it is declared that she is the sole legal owner and entitled to the possession and control of the shares of stock in
question together with all the cash dividends declared thereon by the Benguet Consolidated Mining Company, and prays for
various affirmative reliefs against the respondent. To the answer and cross-complaint thus filed, the respondent, Eugene
Arthur Perkins, filed a reply and an answer in which he sets up several defenses to the enforcement in this jurisdiction of the
judgment of the Supreme Court of the State of New York above alluded to. Instead of demurring to the reply on either of the
two grounds specified in section 100 of the Code of Civil Procedure, petitioner, Idonah Slade Perkins, on June 5, 1940, filed a
demurrer thereto on the ground that "the court has no jurisdiction of the subject of the action," because the alleged judgment
of the Supreme Court of the State of New York is res judicata.

Petitioner's demurrer having been overruled, she now filed in this court a petition entitled "Certiorari, Prohibition
and Mandamus," alleging that "the respondent judge is about to and will render judgment in the above-mentioned case
disregarding the constitutional rights of this petitioner; contrary to and annulling the final, subsisting, valid judgment rendered
and entered in this petitioner's favor by the courts of the State of New York, ... which decision is  res judicata on all the
questions constituting the subject matter of civil case No. 53317, of the Court of First Instance of Manila; and which New
York judgment the Court of First Instance of Manila is without jurisdiction to annul, amend, reverse, or modify in any respect
whatsoever"; and praying that the order of the respondent judge overruling the demurrer be annulled, and that he and his
successors be permanently prohibited from taking any action on the case, except to dismiss the same.
The only question here to be determined, therefore, is whether or not, in view of the alleged judgment entered in favor of the
petitioner by the Supreme Court of New York, and which is claimed by her to be res judicata on all questions raised by the
respondent, Eugene Arthur Perkins, in civil case No. 53317 of the Court of First Instace of Manila, the local court has
jurisdiction over the subject matter of the action in the said case. By jurisdiction over the subject matter is meant the
nature of the cause of action and of the relief sought, and this is conferred by the sovereign authority which organizes
the court, and is to be sought for in general nature of its powers, or in authority specially conferred . In the present case,
the amended complaint filed by the respondent, Eugene Arthur Perkins, in the court below alleged the ownership in himself of
the conjugal partnership between him and his wife, Idonah Slade Perkins; that the petitioner, Idonah Slade Perkins, and
George H. Engelhard assert claims to and interests in the said stock adverse to Eugene Arthur Perkins; that such claims are
invalid, unfounded, and made only for the purpose of vexing, hindering and delaying Eugene Arthur Perkins in the exercise of
the lawful control over and use of said shares and dividends accorded to him and by law and by previous orders and decrees
of this court; and the said amended complaint prays, inter alia, "that defendant Benguet Consolidated Mining Company be
required and ordered to recognize the right of the plaintiff to the control and disposal of said shares so standing in his name to
the exclusion of all others; that the additional defendants, Idonah Slade Perkins and George H. Engelhard, be each held to
have no interest or claim in the subject matter of the controversy between plaintiff and defendant Benguet Consolidated
Mining Company, or in or under the judgment to be rendered herein and that by said judgment they, and each of them be
excluded therefrom; and that the plaintiff be awarded the costs of this suit and general relief." The respondent's action,
therefore, calls for the adjudication of title to certain shares of stock of the Benguet Consolidated Mining Company, and the
granting of affirmative reliefs, which fall within the general jurisdiction of the Court of First Instance of Manila. ( Vide: sec.
146, et seq., Adm. Code, as amended by Commonwealth Act No. 145; sec. 56, Act No. 136, as amended by Act No. 400.)

Similarly, the Court of First Instance of Manila is empowered to adjudicate the several demands contained in petitioner's
cross-complaint. The cross-complaint sets up a judgment allegedly recovered by Idonah Slade Perkins against Eugene Arthur
Perkins in the Supreme Court of New York and by way of relief prays:

(1) Judgment against the plaintiff Eugene Arthur Perkins in the sum of one hundred eighty-five thousand and four
hundred dollars ($185,400), representing cash dividends paid to him by defendant Benguet Consolidated Mining Co.
from February, 1930, up to and including the dividend of March 30, 1937.

(2) That plaintiff Eugene Arthur Perkins be required to deliver to this defendant the certificates representing the
48,000 shares of capital stock of Benguet Consolidated Mining Co. issued as a stock dividend on the 24,000 shares
owned by this defendant as described in the judgment Exhibit 1-A.

(3) That this defendant recover under that judgment Exhibit 1-A interest upon the amount of each cash dividend
referred to in that judgment received by plaintiff Eugene Arthur Perkins from February, 1930, to and including the
dividend of March 30, 1937, from the date of payment of each of such dividends at the rate of 7 per cent per annum
until paid.

(4) That this defendant recover of plaintiff her costs and disbursements in that New York action amounting to the
sum of one thousand five hundred eighty-four and 20/00 dollars ($1,584.20), and the further sum of two thousand
dollars ($2,000) granted her in that judgment Exhibit 1-A as an extra allowance, together with interest.

(5) For an order directing an execution to be issued in favor of this defendant and against the plaintiff for amounts
sufficient to satisfy the New York judgment Exhibit 1-A in its entirety, and against the plaintiff and the defendant
Benguet Consolidated Mining Co. for such other amounts prayed for herein as this court may find to be due and
payable by each of them; and ordering them to comply with all other orders which this court may issue in favor of the
defendant in this case.

(6) For the costs of this action, and

(7) For such other relief as may be appropriate and proper in the premises.

In other words, Idonah Slade Perkins in her cross-complaint brought suit against Eugene Arthur Perkins and the Benguet
Consolidated Mining Company upon the alleged judgment of the Supreme Court of the State of New York and asked the
court below to render judgment enforcing that New York judgment, and to issue execution thereon. This is a form of action
recognized by section 309 of the Code of Civil Procedure (now section 47, Rule 39, Rules of Court) and which falls within
the general jurisdiction of the Court of First Instance of Manila, to adjudicate, settled and determine.

The petitioner expresses the fear that the respondent judge may render judgment "annulling the final, subsisting, valid
judgment rendered and entered in this petitioner's favor by the courts of the State of New York, ... which decision is res
judicata on all the questions constituting the subject matter of civil case No. 53317," and argues on the assumption that the
respondent judge is without jurisdiction to take cognizance of the cause. Whether or not the respondent judge in the course of
the proceedings will give validity and efficacy to the New York judgment set up by the petitioner in her cross-complaint is a
question that goes to the merits of the controversy and relates to the rights of the parties as between each other, and not to the
jurisdiction or power of the court. The test of jurisdiction is whether or not the tribunal has power to enter upon the inquiry,
not whether its conclusion in the course of it is right or wrong. If its decision is erroneous, its judgment case be reversed on
appeal; but its determination of the question, which the petitioner here anticipates and seeks to prevent, is the exercise by that
court — and the rightful exercise — of its jurisdiction.

The petition is, therefore, hereby denied, with costs against the petitioner. So ordered.

Avanceña, C.J., Diaz, Moran and Horrilleno, JJ., concur.

 634 F. Supp. 842 (1986)
In re UNION CARBIDE CORPORATION GAS PLANT DISASTER AT BHOPAL, INDIA IN DECEMBER, 1984.
Misc. No. 21-38 (JFK).

United States District Court, S.D. New York.

May 12, 1986.
As Amended June 10, 1986.

*843 Robins, Zelle, Larson & Kaplan, Minneapolis, Michael V. Ciresi, Bruce A. Finzen, Roberta B. Walburn, D.S. Sastri of
counsel. Barrett, Smith, Schapiro, Simon & Armstrong, New York City, Gerald A. Novack, of counsel, for the Union of
India.

Waite, Schneider, Bayless & Chesley Co., L.P.A., Cincinnati, Ohio, Stanley M. Chesley, Phillip B. Allen, Jan Levien, of
counsel, Bailey & Broder, New York City, F. Lee Bailey, Michael C. Zwal, of counsel, for individual plaintiffs.

Hoffinger, Friedland, Dobrish, Bernfeld & Hasen, New York City, Jack S. Hoffinger, of counsel, Liaison Counsel.

Kelley Drye & Warren, New York City, Bud G. Holman, William A. Krohley, Lisa E. Cleary, of counsel, for defendant.

Christic Institute, Washington, D.C., Rob Hager, Shelley D. Hayes, of counsel, for Amicus Curiae.

 
*844 OPINION and ORDER

KEENAN, District Judge:

 
FACTUAL BACKGROUND

On the night of December 2-3, 1984 the most tragic industrial disaster in history occurred in the city of Bhopal, state of
Madhya Pradesh, Union of India. Located there was a chemical plant owned and operated by Union Carbide India Limited
("UCIL"). The plant, situated in the northern sector of the city, had numerous hutments adjacent to it on its southern side
which were occupied by impoverished squatters. UCIL manufactured the pesticides Sevin and Temik at the Bhopal plant at
the request of, and with the approval of, the Government of India. (Affidavit of John MacDonald ("MacDonald Aff.") at 2).
UCIL was incorporated under Indian law in 1934. 50.9% of its stock is owned by the defendant, Union Carbide Corporation,
a New York corporation. (MacDonald Aff. at 1). Methyl isocyanate (MIC), a highly toxic gas, is an ingredient in the
production of both Sevin and Temik. On the night of the tragedy MIC leaked from the plant in substantial quantities for
reasons not yet determined.

The prevailing winds on the early morning of December 3, 1984 were from Northwest to Southeast. They blew the deadly gas
into the overpopulated hutments adjacent to the plant and into the most densely occupied parts of the city. The results were
horrendous. Estimates of deaths directly attributable to the leak range as high as 2,100. No one is sure exactly how many
perished. Over 200,000 people suffered injuriessome serious and permanent some mild and temporary. Livestock were killed
and crops damaged. Businesses were interrupted.

On December 7, 1984 the first lawsuit was filed by American lawyers in the United States on behalf of thousands of
Indians. Dawani et al. v. Union Carbide Corp., S.D.W.Va. (84-2479). Since then 144 additional actions have been
commenced in federal courts in the United States. The actions have all been joined and assigned by the Judicial Panel on
Multidistrict Litigation to the Southern District of New York by order of February 6, 1985, 601 F. Supp. 1035.

The individual federal court complaints have been superseded by a consolidated complaint filed on June 28, 1985.

The Indian Government on March 29, 1985 enacted legislation, the Bhopal Gas Leak Disaster (Processing of Claims) Act (21
of 1985) ("Bhopal Act"), providing that the Government of India has the exclusive right to represent Indian plaintiffs in India
and elsewhere in connection with the tragedy. Pursuant to the Bhopal Act, the Union of India, on April 8, 1985, filed a
complaint with this Court setting forth claims for relief similar to those in the consolidated complaint of June 28, 1985.

By order of April 25, 1985 this Court established a Plaintiffs' Executive Committee, comprised of F. Lee Bailey and Stanley
M. Chesley, Esqs., who represented individual plaintiffs and Michael V. Ciresi, Esq., whose firm represents the Union of
India. Jack S. Hoffinger, Esq., who represents individual plaintiffs, was appointed liaison counsel for the Plaintiffs' Executive
Committee.[1]

On September 24, 1985, pursuant to the Bhopal Act, the Central Government of India framed a "scheme" for the Registration
and Processing of Claims arising out of the disaster. According to the Union of India's *845 counsel, over 487,000 claims
have been filed in India pursuant to the "scheme."

There presently are 145 actions filed in the United States District Court for the Southern District of New York under the
Judicial Panel for Multidistrict Litigation's order of February 6, 1985, involving approximately 200,000 plaintiffs.

Before this Court is a motion by the defendant Union Carbide Corporation ("Union Carbide") to dismiss the consolidated
action on the grounds of forum non conveniens.

 
DISCUSSION

The doctrine of forum non conveniens allows a court to decline jurisdiction, even when jurisdiction is authorized by a general
venue statute. In support of its position that the consolidated action before the Court should be transferred to a more
convenient forum within the Union of India pursuant to this doctrine, Union Carbide relies on the United States Supreme
Court's decisions in Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 67 S. Ct. 839, 91 L. Ed. 1055 (1947) and Piper Aircraft Co. v.
Reyno, 454 U.S. 235, 102 S. Ct. 252, 70 L. Ed. 2d 419 (1981). The plaintiffs cite numerous other lower United States federal
court cases in their briefs and seek to distinguish the Supreme Court's decisions from this case. Of
course, Gilbertand Piper are the touchstones in sorting out and examining the contentions of both sides to this motion on the
various factors bearing on convenience.

Piper teaches a straightforward formulation of the doctrine of forum non conveniens. A district court is advised to determine
first whether the proposed alternative forum is "adequate." This inquiry should proceed in the order followed below. Then, as
a matter within its "sound discretion," Piper at 257, 102 S. Ct. at 266, the district court should consider relevant public and
private interest factors, and reasonably balance those factors, in order to determine whether dismissal is favored. This Court
will approach the various concerns in the same direct manner in which Piper and Gilbertset them out.

At this juncture, it would be appropriate to discuss the presumptions on a forum non conveniens motion. In Piper, the Court
discussed its earlier finding in Koster v. Lumbermens Mutual Casualty Co., 330 U.S. 518, 67 S. Ct. 828, 91 L. Ed. 1067
(1947), which suggested that a plaintiff's choice of forum was entitled to great deference when the forum chosen was the
home of the plaintiff. This presumption was based on the fact that the choice of the home forum indicated a reasonable
assumption that the choice was convenient. Koster at 524, 67 S. Ct. at 831. Conversely, the Piper Court found:

 
When the plaintiff is foreign, however, this assumption is much less reasonable. Because the central purpose of any forum
non conveniens inquiry is to ensure that the trial is convenient, a foreign plaintiff's choice deserves less deference.

Piper 454 U.S. at 256, 102 S. Ct. at 266 (footnote omitted).

In the case now before the Court, in which the plaintiffs, including the Union of India, are foreign, and share a home forum
which is not the instant forum, the assumption that this forum is convenient is not completely reasonable. The foreign
plaintiffs' choice of the United States forum "deserves less deference" than would be accorded a United States citizen's choice.
This Court will apply the presumption in favor of plaintiffs' choice of forum with "less than maximum force." Piper at 261,
102 S. Ct. at 268. See note 23 at 864, infra.
 
1. Preliminary Considerations.

"At the outset of any forum non conveniens inquiry, the court must determine whether there exists an alternative
forum." Piper at 254, n. 22, 102 S. Ct. at 265, n. 22. The elements of that inquiry are set forth in Piper. First, the Court said,
"[o]rdinarily, this requirement will be satisfied when the defendant is `amenable to process' in the other jurisdiction." Piperat
254, n. 22, *846 102 S. Ct. at 265, n. 22, quoting Gilbert 330 U.S. at 506-507, 67 S. Ct. at 842. Gilbert states that the doctrine
of forum non conveniens "presupposes at least two forums in which the defendant is amenable to process."

Extending the limited inquiry of Gilbert, the Piper Court delved into the relevance of the substantive and procedural
differences in law which would be applied in the event a case was transferred on the grounds of  forum non
conveniens.The Piper Court determined that it was theoretically inconsistent with the underlying doctrine of forum non
conveniens, as well as grossly impractical, to consider the impact of the putative transferee forum's law on the plaintiff in its
decision on a forum non conveniens motion: "[I]f conclusive or substantial weight were given to the possibility of a change in
law, the forum non conveniens doctrine would become virtually useless." Piper 454 U.S. at 250, 102 S. Ct. at 263.[2]

The Court listed numerous practical considerations which led to its conclusion that an unfavorable change in law for plaintiff
was not a relevant factor in the forum analysis. First, the Court observed that if the chance of a change in law were given
substantial weight, choice of law questions would "become extremely important." Piper at 251, 102 S. Ct. at 263. U.S. courts
would "have to compare the rights, remedies, and procedures available" within the two proposed alternative forums, to
determine whether a disadvantageous change in law would occur upon transfer. Id. Since "[t]he doctrine of forum non
conveniens, however, is designed in part to help courts avoid conducting complex exercises in comparative law," the change
in law analysis would subvert the doctrine itself. Id. Thus, a court engaged in the inquiry regarding the existence and adequacy
of an alternative forum should not hinge its decision on an unfavorable change in law. [3]

Another practical concern relating to the "change in law" inquiry was discussed by the Piper court. Based on the liberality of
United States federal law as compared to much foreign law with respect to availability of strict liability for tort, malleable and
diverse choice of law rules among the 50 states, availability of jury trials, contingent fee arrangements and extensive
discovery provisions, the Court observed that a change of forum might frequently involve an unfavorable change of law for
foreign plaintiffs suing American defendants. Piper at 252, n. 18, 102 S. Ct. at 264, n. 18. Consequently, if the unfavorable
change in law were a major factor in the analysis:

 
[T]he American courts, which are already extremely attractive to foreign plaintiffs, would become even more attractive. The
flow of litigation into the United States would increase and further congest already crowded courts.

Piper at 252, 102 S. Ct. at 264 (footnotes omitted).

At the point, however, where the possible change in law would provide "no remedy at all" to plaintiff, a court may conclude
that no adequate alternative exists. As the Piper Court observed, it did not hold that:

 
[T]he possibility of an unfavorable change in law should never be a relevant consideration in a forum non conveniens inquiry.
Of course, if 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.

Piper at 254, 102 S. Ct. at 265 (emphasis in original) (footnote omitted). Thus, while it  *847 is not a "major factor" in the
analysis, a court must at least consider the effect on plaintiffs of a change in law upon transfer.

To a great extent, the plaintiffs in this case argue that Indian courts do not offer an adequate forum for this litigation by virtue
of the relative "procedural and discovery deficiencies [which] would thwart the victims' quest for" justice. (Memorandum in
Opposition by Plaintiffs' Executive Committee ("Memo in Opp.") at 2). The defendant disputes this contention.
Plaintiffs' preliminary concern, regarding defendant's amenability to process in the alternative forum, is more than sufficiently
met in the instant case. Union Carbide has unequivocally acknowledged that it is subject to the jurisdiction of the courts of
India (Defendant's Memorandum in Reply filed December 20, 1985 ("Reply Memo") at 8); (oral argument January 3, 1986,
transcript at 29, comment of Bud Holman, counsel for Union Carbide). Union Carbide is definitely amenable to process in
India.

Beyond this initial test, plaintiffs and amicus curiae[4] argue that the Indian legal system is inadequate to handle the Bhopal
litigation. In support of this position, plaintiffs have submitted the affidavit of Professor Marc S. Galanter of the University of
Wisconsin Law School. Professor Galanter's credentials are impressive; he was a Fulbright Scholar at the Faculty of Law of
Delhi University and specializes in South Asian Studies at the University of Wisconsin Law School. He is not, however,
admitted to practice in India and the Court views his opinions concerning the Indian legal system, its judiciary and bar as far
less persuasive than those of N.A. Palkhivala and J.B. Dadachanji, each of whom has been admitted to practice in India for
over 40 years. Both are Senior Advocates before the Supreme Court of India. Mr. Palkhivala served as Indian Ambassador to
the United States from 1977 to 1979, and has represented the Indian government on three occasions before international
tribunals.

Although the outcome of this analysis, given the rule of Piper regarding change in law, seems self-evident, the Court will
review plaintiffs' argument on the inadequacy of the Indian forum out of deference to the plaintiffs.

 
A. Innovation in the Indian Judicial System.

Professor Galanter describes the Indian common law legal system, inherited from the British, in terms of its similarity to that
of other common law systems. He compares the system favorably to that of the United States or Great Britain in terms of the
appellate structure, the rule of stare decisis, the role of the judiciary as "guardian of [India's] democratic structure and
protector of citizens' rights." (Galanter Aff., at 6-12) before pointing to its ostensible deficiencies. According to Professor
Galanter, India's legal system "was imposed on it" during the period of colonial rule. (Galanter Aff. at 11). Galanter argues
that "Indian legal institutions still reflect their colonial origins," (Galanter Aff. at 12), in terms of the lack of broadbased
legislative activity, inaccessibility of legal information and legal services, burdensome court filing fees and limited
innovativeness with reference to legal practice and education. (Galanter Aff. at 12).

On the question of innovativeness, Mr. Palkhivala responds with numerous examples of novel treatment of complex legal
issues by the Indian Judiciary.[5] In the words of the former ambassador of India to the United States, "a legal system is
not *848 a structure of fossils but is a living organism which grows through the judicial process and statutory enactments."
(Palkhavala Aff. at 3). The examples cited by defendant's experts suggest a developed and independent judiciary. Plaintiffs
present no evidence to bolster their contention that the Indian legal system has not sufficiently emerged from its colonial
heritage to display the innovativeness which the Bhopal litigation would demand. Their claim in this regard is not compelling.

 
B. Endemic Delays in the Indian Legal System.

Galanter discusses the problems of delay and backlog in Indian courts. Indeed, it appears that India has approximately one-
tenth the number of judges, per citizen, as the United States, [6] and that postponements and high caseloads are widespread.
Galanter urges that the backlog is a result of Indian procedural law, which allows for adjournments in mid-hearing, and for
multiple interlocutory and final appeals. Numerous appeals and "[c]onsiderable delay [are] caused by the tendency of courts
to avoid the decision of all the matters in issue in a suit, on the ground that the suit could be disposed of on a preliminary
point." (Galanter Aff. at 17; 18-20, 21, quoting Indian Law Commission, 54th Report (1973) pp. 12-13).

This Court acknowledges that delays and backlog exist in Indian courts, but United States courts are subject to delays and
backlog, too. See Remarks of Honorable Warren E. Burger, Chief Justice, Supreme Court of the United States, 100 F.R.D.
499, 534 (1983).

However, as Mr. Palkhivala states, while delays in the Indian legal system are a fact of judicial life in the proposed alternative
forum, there is no reason to assume that the Bhopal litigation will be treated in ordinary fashion.
The Bhopal tragedy has already been approached with imagination in India. Demonstrating the creativity and flexibility of the
Indian system, the Parliament of India has passed the Bhopal Act in order to deal with the cases arising from the sad events of
December 3, 1984. The Bhopal Act permits the cases to be treated "speedily, effectively, equitably and to the best advantage
of the claimants." (Palkhivala Aff. at 11).

Mr. Dadachanji refers to another Indian case which arose from a gas leak in New Delhi. The Chief Justice and another Justice
of the Supreme Court of India ordered the presiding court to expedite adjudication of claims. MC Mehta v. Union of
India. (Dadachanji Aff. at 11 and Annexure A thereto). In another instance, the Indian Supreme Court directed the High Court
to hear a given matter on a daily basis, and set a deadline for delivering judgment (Dadachanji Aff. at 11 and Annexure B
thereto). Other means of coping with delay are appointment of special tribunals by the Government of India (Dadachanji Aff.
at 12 and Annexure C thereto), and assignment of daily hearing duties to a single special judge, otherwise unburdened, to hear
a special matter. (Dadachanji Aff. at 11). This Court is persuaded, by the example of the Bhopal Act itself and other cases
where special measures to expedite were taken by the Indian judiciary, that the most significant, urgent and extensive
litigation ever to arise from a single event could be handled through special judicial accommodation in India, if required.

 
C. Procedural and Practical Capacity of Indian Courts.

Plaintiffs contend that the Indian legal system lacks the wherewithal to allow it "to deal effectively and expeditiously" with
the issues raised in this lawsuit. (Memo in Opp. p. 53).

Plaintiffs urge that Indian practitioners emphasize oral skills rather than written briefs. They allegedly lack specialization,
practical investigative techniques and coordination into partnerships. These factors, *849 it is argued, limit the Indian bar's
ability to handle the Bhopal litigation. As Mr. Dadachanji indicates, Indian lawyers have competently dealt with complex
technology transfers, suggesting capability within the technological and scientific areas of legal practice, if not
"specialization." (Dadachanji Aff. at 8). Moreover, Indian attorneys use experts, when necessary. As to investigative ability,
Mr. Dadachanji persuasively points out that the Central Bureau of Investigation ("CBI") of the Union of India is well
equipped to handle factual inquiry, as is the Commission of Enquiry constituted by the state of Madhya Pradesh. (Dadachanji
Aff. at 8). While Indian attorneys may not customarily join into large law firms, and as Mr. Palkhivala states, are limited by
present Indian law to partnerships of no more than twenty, this alone or even in concert with other factors does not establish
the inadequacy of the Indian legal system. (Palkhivala Aff. at 8). There is no reason the Indian legislature could not provide
for the expansion of lawfirms, if such a choice is required. In any event, this Court is not convinced that the size of a law firm
has that much to do with the quality of legal service provided. Many small firms in this country perform work at least on a par
with the largest firms. Bigger is not necessarily better.

Moreover, since the Union of India purports to represent all the claimants, it is likely that if the case were transferred to India,
the Attorney General or Solicitor General of India and the Advocate General of Madhya Pradesh, with attendant staffs, would
represent the claimants. The Indian bar appears more than capable of shouldering the litigation if it should be transferred to
India. (Palkhivala Aff. at 9).

Next, plaintiffs and Professor Galanter argue that the substantive tort law of India is not sufficiently developed to
accommodate the Bhopal claims. Plaintiffs trace the lack of sophistication in Indian tort law to the presence of court fees for
litigants as inhibiting the filing of civil suits. Though the filing fees may have had historical significance, they are irrelevant
here. Professor Galanter acknowledges that court fees may be waived for "poor parties or for specific classes of litigants."
(Galanter Aff. at 28). In fact, filing fees have been waived for claimants in India in the Bhopal litigation already begun there.

Professor Galanter asserts that India lacks codified tort law, has little reported case law in the tort field to serve as precedent,
and has no tort law relating to disputes arising out of complex product or design liability. (Galanter Aff. at 30-36). As an
illustration of the paucity of Indian tort law, Professor Galanter states that a search through the  All-India Reportsfor the span
from 1914 to 1965 revealed only 613 tort cases reported. (Galanter Aff. at 32). Mr. Dadachanji responds that tort law is
sparsely reported in India due to frequent settlement of such cases, lack of appeal to higher courts, and the publication of tort
cases in specialized journals other than the All-India Reports. (Dadachanji Aff. at 16-17; Palkhivala Aff. at 10). In addition,
tort law has been codified in numerous Indian statutes. (Dadachanji Aff. at 16-17).
As Professor Galanter himself states, "the major categories of tort, their elements, the [theories] of liability,
defenses, respondeat superior, the theories of damagesare all familiar." (Galanter Aff. at 37). What is different, Galanter
asserts, is the complete absence of tort law relating to high technology or complex manufacturing processes. This is of no
moment with respect to the adequacy of the Indian courts. With the groundwork of tort doctrine adopted from the common
law and the precedential weight awarded British cases, as well as Indian ones, it is obvious that a well-developed base of tort
doctrine exists to provide a guide to Indian courts presiding over the Bhopal litigation. In any event, much tort law applied in
American cases involving complex technology has its source in legal principles first enunciated in Victorian England. See,
e.g., Rylands v. Fletcher, 1868, L.R. 3 H.L. 330. As Mr. Palkhivala stated in his affidavit:

 
*850 The plant itself was the product of highly complex technology, but complexity of the technology cannot be equated with
complexity of legal issues. The principles of liability and damages involved in the Bhopal cases are all well established in
India. The complexity is not in the nature or determination of legal issues but in the application of the law to the events which
took place in Bhopal. Well settled law is to be applied to an unusual occurrence.

(Palkhivala Aff. at 7).

Plaintiffs next assert that India lacks certain procedural devices which are essential to the adjudication of complex cases, the
absence of which prevent India from providing an adequate alternative forum. They urge that Indian pre-trial discovery is
inadequate and that therefore India is an inadequate alternative forum. Professor Galanter states that the only forms of
discovery available in India are written interrogatories, inspection of documents, and requests for admissions. Parties alone
are subject to discovery. Third-party witnesses need not submit to discovery. Discovery may be directed to admissible
evidence only, not material likely to lead to relevant or admissible material, as in the courts of the United States. Parties are
not compelled to provide what will be actual proof at trial as part of discovery.

These limits on discovery are adopted from the British system. Similar discovery tools are used in Great Britain today. This
Court finds that their application would perhaps, however, limit the victims' access to sources of proof. Therefore, pursuant to
its equitable powers, the Court directs that the defendant consent to submit to the broad discovery afforded by the United
States Federal Rules of Civil Procedure if or when an Indian court sits in judgment or presides over pretrial proceedings in the
Bhopal litigation.[7] Any dismissal of the action now before this Court is thus conditioned on defendant's consent to submit to
discovery on the American model, even after transfer to another jurisdiction.

The ostensible lack of devices for third-party impleader or for organizing complex cases under the law of the state of Madhya
Pradesh are two other procedural deficiencies which plaintiffs assert preclude a finding that India offers an adequate
alternative forum. Assuming for the moment that, upon appropriate transfer, the Bhopal litigation would be adjudicated by the
local district court in Bhopal, and that the law of Madhya Pradesh would be applied, this Court is still not moved by plaintiffs'
argument regarding impleader or complex litigation.

Although no specific provision in the Indian Code of Civil Procedure permits the impleading of third-parties from whom
contribution is sought, other provisions in the Code do provide for impleader. As both parties to this motion state, Order 1,
Rule 10(2) of the Indian Code of Civil Procedure "allows the court to add additional parties if the presence of those parties is
`necessary in order to enable the Court effectively and completely to adjudicate upon and settle all questions involved in the
suit.'" (Galanter Aff. at 60; Dadachanji Aff. at 18). Professor Galanter posits that a joint tortfeasor would not be considered a
necessary party, and would not be joined. Defendant's expert, conversely, asserts that a party can be added to prevent
multiplicity of suits and conflicts of decisions. Thus, Mr. Dadachanji argues, defendants would be able to seek contribution
from third-parties if joinder would prevent repetitive litigation or inconsistency. Moreover, the broad provision of inherent
powers to aid the ends of justice, as codified at Section 151 of the Indian Code of Civil Procedure would prevent an ultimate
miscarriage of *851 justice in the area of impleader. (Dadachanji Aff. at 19).[8]

The absence of procedures or mechanisms within the Indian judiciary to handle complex litigation is presented as support for
plaintiffs' position regarding the non-existence of an adequate alternative forum. Professor Galanter asserts, for example, that
Indian judges do not promote settlements. The point is wholly irrelevant to the question of whether an adequate alternative
forum exists. In any event, this Court has labored hard and long to promote settlement between the parties for over a year, to
no avail. It would appear that settlement, although desirable for many reasons, including conservation of attorneys' fees and
costs of litigation, preservation of judicial resources, and speed of resolution, is unlikely regardless of the level of activism of
the presiding judge.

Plaintiffs' next contention is that since no class action procedure exists in India expeditious litigation of the Bhopal suits
would be impossible. As with all of plaintiffs' other arguments, this purported deficiency does not constitute "no remedy" at
all. Professor Galanter himself acknowledges that Order 1, Rule 8 of the Indian Code of Civil Procedure provides a
mechanism for "representative" suits, "where there are numerous persons having the same interest in one suit." (Galanter Aff.
at 54). Even if the current state of Indian law regarding "representative" suits involves application of the mechanism to pre-
existing groups such as religious sects or associations, there is no reason to conclude that the Indian legislature, capable of
enacting the Bhopal Act, would not see its way to enacting a specific law for class actions. In addition, it does not appear on
the face of Order 1, Rule 8 that the "representative" suit is expressly limited to preexisting groups. The Indian district court
could adopt the rule for use in a newly created class of injured, whose members all have "the same interest" in establishing the
liability of the defendant. An Indian court has law available to create a representative class, or perhaps a few different
representative classes. The "scheme" for registration and processing of claims, see supra, at 4, could perform the task of
evaluating the specific amounts of claims. Moreover, Mr. Dadachanji gives at least three examples where Indian courts have
consolidated suits pursuant to their inherent power under Section 151 of the Indian Code of Civil Procedure. In at least one
case, such consolidation allegedly occurred without consent of the parties. (Dadachanji Aff. at 9). The absence of a rule for
class actions which is identical to the American rule does not lead to the conclusion that India is not an adequate alternative
forum.

Final points regarding the asserted inadequacies of Indian procedure involve unavailability of juries or contingent fee
arrangements in India. Plaintiffs do not press these arguments, but Mr. Palkhivala touches upon them. They are easily
disposed of. The absence of juries in civil cases is a feature of many civil law jurisdictions, and of the United
Kingdom. Piper at 252, n. 18, 102 S. Ct. at 264, n. 18 and citations therein. Furthermore, contingency fees are not found in
most foreign jurisdictions. Piper at 252, n. 18, 102 S. Ct. at 264, n. 18. In any event, the lack of contingency fees is not an
insurmountable barrier to filing claims in India, as demonstrated by the fact that more than 4,000 suits have been filed by
victims of the Bhopal gas leak in India, already. According to Mr. Palkhivala, moreover, well-known lawyers have been
known to serve clients without charging any fees. (Palkhivala Aff. at 8).

Plaintiffs' final contention as to the inadequacy of the Indian forum is that a judgment rendered by an Indian court cannot be
enforced in the United States without *852 resort to further extensive litigation. Conversely, plaintiffs assert, Indian law
provides res judicata effect to foreign judgments, and precludes plaintiffs from bringing a suit on the same cause of action in
India. (Galanter Aff. at 63-65). Mr. Dadachanji disputes this description of the Indian law of res judicata. He asserts that the
pendency, or even final disposition, of an action in a foreign court does not prevent plaintiffs from suing in India upon the
original cause of action. Plaintiffs would not be limited, Mr. Dadachanji argues, to an Indian action to enforce the foreign
judgment. (Dadachanji Aff. at 19-20). In addition, he states that an Indian court, before ordering that a foreign judgment be
given effect, would seek to establish whether the foreign court had failed to apply Indian law, or misapplied Indian law.
(Dadachanji Aff. at 20).

The possibility of non-enforcement of a foreign judgment by courts of either country leads this Court to conclude that the
issue must be addressed at this time. Since it is defendant Union Carbide which, perhaps ironically, argues for the
sophistication of the Indian legal system in seeking a dismissal on grounds of forum non conveniens, and plaintiffs, including
the Indian Government, which state a strong preference for the American legal system, it would appear that both parties have
indicated a willingness to abide by a judgment of the foreign nation whose forum each seeks to visit. Thus, this Court
conditions the grant of a dismissal on forum non conveniens grounds on Union Carbide's agreement to be bound by the
judgment of its preferred tribunal, located in India, and to satisfy any judgment rendered by the Indian court, and affirmed on
appeal in India. Absent such consent to abide by and to "make good" on a foreign judgment, without challenge except for
concerns relating to minimal due process, the motion to dismiss now under consideration will not be granted. The preference
of both parties to play ball on a distant field will be taken to its limit, with each party being ordered to be bound by the
decision of the respective foreign referees.

To sum up the discussion to this point, the Court determines that the Indian legal system provides an adequate alternative
forum for the Bhopal litigation. Far from exhibiting a tendency to be so "inadequate or unsatisfactory" as to provide "no
remedy at all," the courts of India appear to be well up to the task of handling this case. Any unfavorable change in law for
plaintiffs which might be suffered upon transfer to the Indian courts, will, by the rule of Piper, not be given "substantial
weight." Differences between the two legal systems, even if they inure to plaintiffs' detriment, do not suggest that India is not
an adequate alternative forum. As Mr. Palkhivala asserts with some dignity, "[w]hile it is true to say that the Indian system
today is different in some respects from the American system, it is wholly untrue to say that it is deficient or inadequate.
Difference is not to be equated with deficiency." (Palkhivala Aff. at 4). Piper at 254, 102 S. Ct. at 265. The inquiry now turns
to a weighing of the public and private interest factors.

 
2. Private Interest Concerns.

The Gilbert Court set forth a list of considerations which affect the interests of the specific litigants to an action, and which
should be weighed in making a forum non conveniens determination. The so-called private interest factors, along with public
interest factors discussed below, were not intended to be rigidly applied. As the Court stated in Piper,

 
"[E]ach case turns on its facts." If central emphasis were placed on any one factor, the  forum non conveniensdoctrine would
lose much of the flexibility that makes it so valuable.

Piper at 249-50, 102 S. Ct. at 263. Recognizing that "[p]articularly with respect to the question of relative ease of access to
sources of proof," "the private interests point in both directions," the Supreme Court nevertheless upheld a district court's
decision to dismiss a case in favor of the relative convenience of a forum in Scotland.  Piper at 257, 102 S. Ct. at 267. By
contrast, this Court finds that the private interests *853 point strongly one way. As in Piper, it appears that the burdensome
effect of a trial in this forum supports a finding that the private interest factors in this case weigh strongly in favor of
dismissal.

 
A. Sources of Proof.

The first example of a private interest consideration discussed in Gilbert is "relative ease of access to sources of proof." As
stated, the analysis of this issue must hinge on the facts. Limited discovery on the issue of  forum non conveniens has taken
place, pursuant to the Court's order of August 14, 1985.[9] The Court can therefore proceed to discuss this question.

Union Carbide argues that virtually all of the evidence which will be relevant at a trial in this case is located in India. Union
Carbide's position is that almost all records relating to liability, and without exception, all records relevant to damages, are to
be found in and around Bhopal. On the liability question Union Carbide asserts that the Bhopal plant was managed and
operated entirely by Indian nationals, who were employed by UCIL. (Affidavit of Warren J. Woomer, formerly Works
Manager of the Bhopal plant ("Woomer Aff.") at 2). Defendant asserts that the Bhopal plant is part of UCIL's Agricultural
Products Division, which has been a separate division of UCIL for at least 15 years, and that the plant had "limited contact"
with UCIL's Bombay headquarters, and almost no contact with the United States. (Woomer Aff. at 4, 32). Woomer claims to
have been the last American employed by UCIL. He departed from Bhopal in 1982. (Woomer Aff. at 2).

Woomer describes the structure and organization of the Bhopal facility at the time of the accident. The plant had seven
operating units, each headed by a manager or department head, each an Indian national. [10] The managers or department heads
each reported either directly to the plant's General Works Manager, or to one of three Assistant Works Managers. (Woomer
Aff. at 6). Each of these is also an Indian national. Three of the operating units which at this very early stage of inquiry into
liability appear to have been potentially involved in the MIC leak are the Carbon Monoxide, MIC/Phosgene and
Carbamoylation units. (Woomer Aff. at 7-10). The Carbon Monoxide and MIC/Phosgene units together employed 63
employees, all Indian nationals. (Woomer Aff. at 9). The Carbamoylation unit employed 99 Indian nationals. (Woomer Aff. at
10). Mr. Woomer states that an inquiry into the cause of the accident would require interviews with at least those employees
who were on duty at the Bhopal facility "immediately prior or after the accident;" Mr. Woomer asserts that there are 193
employees, all Indians, who must be interviewed. (Woomer Aff. at 58).[11]

In addition to the seven operating units, the Bhopal plant contained seven functional departments which serviced operations.
[12]
 The seven heads of the units reported within the plant much as the department heads did.

The maintenance unit was apparently subdivided into departments including Instrumentation, Mechanical Maintenance, both
part of the Agricultural Chemical Maintenance unit, which employed 171 people in total, and Plant Engineering and
Formulation Maintenance, which employed 46 people. (Woomer Aff. at 11-12). In *854 addition, the Utilities and Electrical
department employed 195 people. (Woomer Aff. at 13). According to Mr. Woomer, the various maintenance organizations
performed repairs on equipment, provided engineering support, fabricated certain equipment, salvaged other portions, and
controlled utilities, temperatures and pressures throughout the plant. (Woomer Aff. at 11-14).

Moreover, according to Mr. Woomer, these UCIL departments also kept daily, weekly and monthly records of plant
operations, many of which were purportedly seized by the CBI and selected for copying by CBI immediately after the
accident.[13] The records and reports of the various maintenance units would likely be relevant to the question of liability at
trial.

Of the additional functional units, it is possible that Quality Control, with 54 employees, Purchasing, with 53, or Stores may
have been directly involved in the disaster by virtue of their participation in analyzing plant output, procuring raw materials
for the chemical processes of the plant, and maintaining spare parts and certain chemicals. (Woomer Aff. at 14-19). Thus, the
records and reports of these three departments may be necessary to an investigation of liability. While examination of
members of the Works Office department and Industrial Relations department would likely be less directly useful,
information regarding plant budgets and employee histories might be of relevance. Of great importance are the records and
reports of the Safety/Medical department, which was responsible for daily auditing of safety performance in all departments,
training and testing on safety rules, maintaining safety statistics and planning and implementing safety drills. (Woomer Aff. at
22-23). The 31 Indian employees of this department worked with the Central Safety Committee of the plant, whose members
were drawn from plant management, and the Departmental Safety Committees. Operating units were required to monitor
plant safety mechanisms weekly, and to keep monthly checklists. (Holman Aff. # 2 at 9). The Central Safety Committee met
monthly, as did the Departmental Safety Committees. (Woomer Aff. at 39). The MIC Unit held monthly safety committee
meetings, for example, and issued monthly reports. (Woomer Aff. at 41). Quarterly "Measures of Performance" reviews also
covered safety issues, and were required of each operating unit. (Woomer Aff. at 40). Certainly, interviews of the plant
personnel involved in safety reports and audits would be particularly relevant to the investigation of the disaster.

Plaintiffs refer to three occasions upon which Union Carbide, not UCIL, employees conducted safety audits at the Bhopal
plant. As defendant correctly argues, these three events constitute a very small fraction of the thousands of safety audits
conducted at the Bhopal facility. The three audits, moreover, were conducted in 1979, the fall of 1980 and in May of 1982,
many years prior to the accident which is the subject of this lawsuit. (Plaintiffs' Memo in Opp. at 25). [14]

Two accidents which occurred previously at the Bhopal plant might also be of relevance to the liability inquiry in this
litigation. On December 24, 1981, a phosgene gas leak killed a UCIL maintenance worker. *855 Reports of the fatality were
sent to Union Carbide management in the United States. (Woomer Deposition, Exs. 30 and 31). Plaintiffs assert that the
accident report called for increased training in Bhopal by United States employees of Union Carbide's Institute, West
Virginia, plant. Defendant states that the responsibility for remedying problems in the Bhopal plant rested with the plant itself,
and that Union Carbide did not make any recommendations, and was involved only to the extent of receiving a copy of the
report which called for its involvement in further training. (Woomer Aff. at 41).

The second accident at Bhopal prior to the disaster of December, 1984 took place on February 9, 1982, when a pump seal,
perhaps improperly used, failed. (Memo in Opp. at 24; Woomer Aff. at 41). Many employees were injured, and at least 25
were hospitalized. Plaintiffs discuss the fact that Robert Oldford, president of Union Carbide Agricultural Products Company
("UCAPC") a wholly-owned subsidiary of Union Carbide headquartered in the United States, was in Bhopal at the time of the
February 1982 leak. (Memo in Opp. at 24). Union Carbide asserts that Mr. Oldford was visiting UCIL's Research and
Development Centre, located several miles from the Bhopal plant for an unrelated purpose, and was only coincidentally in
Bhopal when the leak occurred. To the extent that this presence in India in 1982 has any significance, Mr. Oldford, and any
other United States employees of Union Carbide who conducted safety audits in Bhopal or were present when accidents
occurred there, may be flown to Bhopal for testimony or discovery.

In addition to safety data, two other types of proof may be relevant to a trial of this case on the merits. Information regarding
plant design, commissioning and start-up may bear upon the liability question. Information pertinent to employee training
should also have significance.

Leaving aside the question of whether the Government of India or UCIL chose the site and product of the Bhopal plant, the
Court will evaluate the facts which bear on the issue of relevant records. The findings below concern the location of proof
only, and bear solely upon the forum non conveniens motion. The Court expressly declines to make findings as to actual
liability at this stage of the litigation.

Plaintiffs and defendant agree that in 1973 Union Carbide entered into two agreements with UCIL which were entitled
"Design Transfer Agreement" and "Technical Service Agreement." According to plaintiffs, Union Carbide, pursuant to the
Design Transfer Agreement, provided a process design to UCIL, the "detailing [of which] was undertaken in India." (Memo
in Opp. at 17). The process design package consisted of the basic plan of the factory, which was to be fleshed out in the
detailing phase. Plaintiffs state that at least nine Union Carbide technicians travelled to India to monitor the progress of the
project. Union Carbide also allegedly assigned a "key engineer," John Couvaras, to serve as UCIL Bhopal project manager.
Mr. Couvaras allegedly "assumed responsibility for virtually every aspect of the detailing of the process design," and
approved detail reports of "not only UCIL but also independent contractors, including Humphreys & Glasgow Consultants
Private Ltd. and Power Gas Limited" of Bombay, India. (Memo in Opp. at 17-20).[15]

Plaintiffs also claim that "[n]o change of any substance was made from Union Carbide's design during the detailing phase."
Plaintiffs note that only "one portion" of the process design work provided to UCIL by Union Carbide was not used. (Memo
in Opp. at 20). In effect, plaintiffs seek to establish that Union Carbide was the creator of the design used in the Bhopal plant,
and directed UCIL's relatively minor detailing program. They urge that for the most *856 part relevant proof on this point is
located in the United States.

Defendant seeks to refute this contention, with notable success. Turning first to the affidavit of Robert C. Brown, who
describes himself as "chief negotiator for Union Carbide Corporation in connection with the two agreements it entered into
with ... UCIL in November, 1973," the Court is struck by the assertion that the two agreements were negotiated at "arms-
length" pursuant to Union Carbide corporate policy, and that the Union of India mandated that the Government retain
"specific control over the terms of any agreements UCIL made with foreign companies such as Union Carbide Corporation."
(Brown Aff. at 3-4).[16]

Mr. Brown alleges that the Letter of Intent issued by the Union of India in March 1972, pursuant to which construction and
design of the plant were allowed to ensue provided, inter alia, that:

 
(2) [F]oreign collaboration and import of equipment be settled to the satisfaction of the Government.

Mr. Brown claims, on personal information, that UCIL told him that Union Carbide would not be allowed to be involved in
the Bhopal project beyond the provision of process design packages. (Brown Aff. at 5). The Design Transfer Agreement
indicates that Union Carbide's duty under the Agreement was to provide process design packages, and that UCIL, not Union
Carbide, would be responsible to "detail design, erect and commission the plant." (Defendant's Ex. 4, § 4.1). Union Carbide,
accordingly, issued limiting warranties with respect to the design packages, detailing of which it would not be involved with.
(Brown Aff. at 7, Ex. 4, §§ 4.1, 12.3).

The nature of UCIL's detail design work is discussed in the affidavit of Ranjit K. Dutta, who has held various positions at
UCIL and UCAPC. From 1973 through 1976, Mr. Dutta was employed as General Manager of the Agricultural Products
Division of UCIL. (Dutta Aff. at 2).

Mr. Dutta asserts that the Bhopal facility was built by UCIL over the eight years from 1972 to 1980. (Dutta Aff. at 8). He
asserts that Union Carbide's role in the project was "narrow", and limited to providing "certain process design packages for
certain parts of the plant." (Dutta Aff. at 9). He continues, stating:

 
Once it did that, it had no further design or engineering role,

and that:

 
[T]he process design packages which Union Carbide Corporation provided are nothing more than summary design starting
points.... They set forth only the general parameters.... A plant cannot be constructed from a process design package. The
detail design comprises approximately 80 percent of the sum of the man hours involved in the design of any project and
transposes the general process design parameters into an actual design which can be used for purchasing equipment and actual
construction.

(Dutta Aff. at 9-12). (emphasis omitted).

According to Mr. Dutta, during the five years between the date upon which Union Carbide submitted process designs, and the
date upon which the plant started-up, there were only four visits to Bhopal by Union Carbide process design engineers. (Dutta
Aff. at 14). In contrast, he asserts that ten to fifteen UCIL engineers, working primarily out of Bombay, were involved in
design detailing. (Dutta Aff. at 16). These UCIL engineers oversaw the 55 to 60 Indian engineers  *857employed by the
Bombay engineering firm which performed the detail design work. This firm, Humphreys and Glasgow, submitted designs
and drawings to the UCIL engineers for approval. Corrected drawings were returned by UCIL to Humphreys and Glasgow for
changes, and sent back to UCIL for final approval. (Dutta Aff. at 19-24). [17] Mr. Dutta alleges that "at no time were Union
Carbide Corporation engineering personnel from the United States involved in approving the detail design or drawings
prepared upon which construction was based. Nor did they receive notices of changes made." (Dutta Aff. at 24).

Mr. Dutta expressly states that the MIC storage tank and monitoring instrumentation were fabricated or supplied by two
named Indian sub-contractors. The vent gas scrubber is alleged to have been fabricated in the Bhopal plant shop. (Dutta Aff.
at 25).

Of the 12,000 pages of documents purportedly seized by the CBI regarding design and construction of the Bhopal plant, an
asserted 2,000 are design reports of Humphreys and Glasgow, UCIL or other contractors. Defendant claims that blueprints
and calculations comprise another 1,700 pages of documents held by the CBI. Five thousand pages of contractors' files,
including specifications and contracts are asserted to be in India. In addition, Union Carbide claims that blueprints and
diagrams may not reflect final design changes as incorporated into the actual plant, and that the detail design engineers'
testimony will be needed to determine the configuration of the actual plant.[18] (Holman Aff. # 2 at 15-16).

One final point bearing on the information regarding liability is contained in the affidavit of Edward Munoz, at a relevant time
the General Manager of UCIL's Agricultural Products Division. He later acted as Managing Director of UCIL. Mr. Munoz has
submitted an affidavit in which he states that Union Carbide decided to store MIC in large quantities at the Bhopal plant,
despite Mr. Munoz' warnings that MIC should be stored only in small amounts because of safety. (Memo in Opp. at 15-16;
Munoz Aff.). Mr. Dutta, for defendant, asserts that there was never any issue of token storage of MIC at Bhopal, as Mr.
Munoz states, and that there is no truth to Mr. Munoz' assertion that he was involved in the storage issue. (Dutta Aff. at 30).
[19]
*858 The Court cannot make any determination as to the conflicting affidavits before it. This question, which involves
credibility concerns, is left for later in the litigation. To the extent that this particular matter bears upon the relative ease of
access to sources of proof, Mr. Munoz and Mr. Dutta both may be called to testify at trial or discovery. Mr. Dutta's home is in
Bhopal. (Dutta Aff. at 1). The Court is not aware of the whereabouts of Mr. Munoz at this time. Either of the two could travel
to either alternative forum.

In addition to design and safety records, material regarding training of Bhopal personnel is likely to be relevant to the question
of liability. Plaintiffs state that Warren Woomer supervised the training of UCIL personnel at Union Carbide's Institute, West
Virginia plant. According to plaintiffs, 40 UCIL employees were transported to Institute's MIC facility for lengthy training.
(Memo in Opp. at 22). Mr. Woomer states in reply that the 40 employees thus trained represented a fraction of the over 1,000
employees who were trained exclusively in Bhopal. (Woomer Aff. at 43). In addition, Mr. Woomer asserts that the training at
Institute was pursuant to an arms-length agreement, that UCIL selected the parties to be trained, and that UCIL paid Union
Carbide for the training. (Woomer Aff. at 43). Moreover, Mr. Woomer's description of the training provided at Bhopal
suggests that each of the plant's employees had lengthy cumulative training, of which the Institute training was but a very
small portion. (Woomer Aff. at 46). Personnel records, in any event, are located in Bhopal. (Holman Aff. # 2 at 4).

The briefs and affidavits contain considerable discussion on the matter of commissioning and start-up of the Bhopal plant.
The Court need not resolve the question of who was responsible for these aspects of plant operation. However, the Court
determines that the manual regarding start-up was prepared by Indian nationals employed by UCIL. (Woomer Aff. at 48).

In the aggregate, it appears to the Court that most of the documentary evidence concerning design, training, safety and start-
up, in other words, matters bearing on liability, is to be found in India. Much of the material may be held by the Indian CBI.
Material located in this country, such as process design packages and training records of the 40 UCIL employees trained at
Institute, constitutes a smaller portion of the bulk of the pertinent data than that found in India. Moreover, while records in
this country are in English, a language understood in the courts of India, certain of the records in India are in Hindi or other
Indian languages, as well as in English. (Holman Aff. # 2 at 12). The Indian language documents would have to be translated
to be of use in the United States. The reverse is not true. It is evident to the Court that records concerning the design,
manufacture and operation of the Bhopal plant are relatively more accessible in India than in the United States, and that fewer
translation problems would face an Indian court than an American court. Since Union Carbide has been directed to submit to
discovery in India pursuant to the liberal grant of the American Federal Rules of Civil Procedure, and this opinion is
conditioned upon such submission, any records sought by plaintiffs must be made available to them in India. The private
interest factor of relative ease of access to sources of proof bearing on liability favors dismissal of the consolidated case.
[20]
 The Indian *859 Government is asserted to have been involved in safety, licensing and other matters relating to liability.
Records relating thereto are located in India, as are the records seized by the CBI. Although plaintiffs state that all such
records could and would be made available to this Court, it would be easier to review them in India. Transmittal and
translation problems would thereby be avoided.

 
B. Access to Witnesses.

Gilbert teaches a second important consideration under the heading of private interests, the "availability of compulsory
process for attendance of willing, and the cost of obtaining attendance of unwilling, witnesses." Gilbert, 330 U.S. at 508, 67 S.
Ct. at 843. As discussed in detail above, most witnesses whose testimony would relate to questions of causation and liability
are in India. Engineers from UCIL and Humphreys and Glasgow and other subcontractors, of whom there are hundreds, are
located in India. Shift employees from the possibly malfunctioning units, safety monitoring personnel, those responsible for
training, safety auditing, procurement, compliance with regulations and other operations might be required to testify. More
than likely, many of these potential witnesses do not speak English, and would require translators. Many of the witnesses are
not parties to this litigation. Therefore, as the Court of Appeals for the Second Circuit has stated in the context of a  forum non
conveniens motion:

 
In fact, the plaintiffs' cases on liability will depend in large measure upon the knowledge and activities of such witnesses as
the employees of [companies] who are not parties to this litigation, but who directly participated in the events which gave rise
to it. The United States District Court in New York, however, has no power to subpoena any of these witnesses. It is unlikely
that many would be willing to travel to New York to testify; and the cost, in any event, would be prohibitively great.

Fitzgerald v. Texaco, 521 F.2d 448, 451-52 (2d Cir. 1975), cert. denied, 423 U.S. 1052, 96 S. Ct. 781, 46 L. Ed. 2d 641 (1976)
(footnote omitted). In contrast, the relatively few witnesses who reside in the United States are primarily employed by Union
Carbide. As employees of a party they would probably be subject to the subpoena power of Indian courts. Transportation
costs would also be lower, since fewer people would have to make the journey to testify.

The presence of the Indian Government in this action is also of critical importance on this motion. Plaintiffs assert that "all
necessary officials and employees of the Central Government will voluntarily comply with requests to attend trial." (Memo in
Opp. at 70; Answer to No. 124 of Defendant's First Requests for Admission, Exhibit 55). This statement does not provide for
attendance by officials of Madhya Pradesh or the Bhopal municipality, whom Union Carbide indicates might be impleaded as
third-party defendants. As witnesses only, these officials would not be subject to this Court's subpoena power. As third-party
defendants, they might be immune from suit in the United States by the terms of the Foreign Sovereign Immunities Act, 28
U.S.C. § 1602 et seq. State and city officials might also lack sufficient contacts with this district to allow this Court to exercise
personal jurisdiction over them.

While Union Carbide might be deprived of testimony of witnesses or even potential third-parties if this action were to proceed
in this forum, no such problem would exist if litigation went forward in India.

The unavailability of compulsory process for Indian non-party witnesses, of whom *860 there are many, such as would ensure
their presence at a trial in this country, the high cost of transporting the large number of Indian nationals to the United States,
as well as the need to translate their testimony should they appear, all support the argument favoring dismissal of this action
on forum non conveniens grounds. The private interest concerns regarding witnesses emphasize the logic of defendant's
position. Relatively fewer witnesses reside in the United States than in India. Almost all of the witnesses located in this
country are employees of defendant, and would be subject to compulsory process in India as a result. Transportation costs for
the relative few would not compare to the alternate costs of transporting hundreds of Indian witnesses. Since English is widely
spoken in India, less translation would be required for foreign witnesses in India than in the converse situation. Should this
case be tried in India, fewer obstacles to calling state and local officials as witnesses or parties would face the defendant. The
Court determines that this private interest factor weighs in favor of dismissal.

 
C. Possibility of View.

The third private interest factor articulated in Gilbert is the ease of arranging for a view of the premises around which the
litigation centers. Plaintiffs assert that the notion that a jury view of the plant and environs is necessary is "simply
preposterous." (Memo in Opp. at 71). Plaintiffs note that a viewing of the premises is rarely conducted in products liability
cases, since videotapes, pictures, diagrams, schematics and models are more instructive than an actual view. (Memo in Opp.
at 71). A viewing of the plant and hutments would probably not be of utmost importance in determining liability, and this
consideration is not afforded great weight on this motion.

However, the instant case is not identical to the product design defect case cited by plaintiffs, in which a district court judge
determined that "the present appearance of the defendants' facilities may or may not be relevant to production which
occurred" in the period in which the allegedly violative manufacture occurred. Hodson v. A.H. Robins Co., Inc., 528 F. Supp.
809, 822 (E.D.Va.1981), aff'd, 715 F.2d 142 (4th Cir. 1983). In the instant case, the site of the accident was sealed after the
leak, and the present condition of the plant might be relevant to a finding of liability. A viewing may not be necessary, but
conceivably could be called for later in the litigation. An Indian court is in a far better position than this Court to direct and
supervise such a viewing should one ever be required. This consideration, though minor, also weighs in favor of dismissal.

In summary, then, the private interest factors weigh greatly in favor of dismissal on grounds of  forum non conveniens.Since
the "balance is strongly in favor of the defendant" and foreign plaintiffs' choice of a foreign forum is given less than
maximum deference, the Court determines that dismissal is favored at this point in the inquiry.  Gilbert 330 U.S. at 508, 67 S.
Ct. at 843.

 
3. Public Interest Concerns.

The Gilbert Court articulated certain factors which affected the interests of non-parties to a litigation to be considered in the
context of the doctrine of forum non conveniens. These public interest concerns were held to be relevant to a court's
determination of whether to dismiss on these grounds. The Supreme Court expressly identified a few 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. There is an appropriateness, too, in having the trial of a diversity case in a forum that is at
home with the state law that must govern the case, rather than *861 having a court in some other forum untangle problems in
conflict of laws, and in law foreign to itself.

Gilbert at 508-09, 67 S. Ct. at 843. The Court will consider these various factors in turn, as well as others discussed by the
parties and amicus curiae.

 
A. Administrative Difficulties.

As is evident from the discussion thus far, the mere size of the Bhopal case, with its multitude of witnesses and documents to
be transported and translated, obviously creates administrative problems.
There can be no doubt that the Bhopal litigation will take its toll on any court which sits in judgment on it. This Court sits in
one of the busiest districts in the country, and finds, as a matter within its experience, that this is a "congested center" of
litigation as described in Gilbert at 508. The burden which would be imposed should litigation continue here was aptly
described by the Court of Appeals for the Second Circuit in Schertenlieb v. Traum, 589 F.2d 1156 (2d Cir.1978). Reviewing a
district judge's ruling for dismissal on the grounds of forum non conveniens, the Second Circuit observed that "were it not for
the somewhat unusual fact that it is the forum resident who seeks dismissal, we would have to say very little regarding the
exercise of Judge Metzner's discretion in dismissing this case." Schertenlieb at 1164. In affirming the ruling for dismissal, the
Court of Appeals asked the rhetorical question:

 
If litigation is in a clearly inconvenient forum, why should defendant and the court be burdened with its continuing there, if an
alternative forum now exists so that plaintiff will not be without a remedy?

Schertenlieb at 1163.

This Court has already determined that because of the location of the preponderance of the evidence in India, and the
difficulty of transporting documents and witnesses to this forum, this district is clearly an inconvenient forum for the
litigation. An alternative forum is seen to exist in India. This Court feels that the answer to the Schertenlieb question is clear.

A district judge in this district, in Domingo v. States Marine Lines, 340 F. Supp. 811 (S.D.N.Y.1972) evaluated the
administrative concerns of the Southern District of New York, relevant to this Court today, a full fourteen years later.
The Domingo court stated:

 
It is scarcely necessary to dwell on the fact that this Court is the most heavily burdened Federal District Court in the country.
The Civil Calendar grows more congested all the time. The priority now properly given to the disposition of criminal cases
tends to increase this congestion.
 
******
 
I see no reason why this Court, with its heavy burdens and responsibilities, should be burdened with cases like these which,
from every point of view, should be tried in the courts of the nation where all the relevant events occurred and whose citizens
are primarily involved. Certainly, this district and the Metropolitan area in which it is situated have no conceivable relation to
this litigation except for the fact that the defendant happens to be doing business here.

Domingo at 816.

The defendant in this case, involved as it appears to have been in the process design phase of the plant's construction, may
have a slightly less tenuous connection to this forum than a corporation which is merely doing business here. Certain business
conducted in New York, or in corporate headquarters in Danbury, Connecticut, may have been directly related to
development or operation of the UCIL facility in Bhopal. However, almost "all the relevant events" leading to and following
from the accident occurred in India. Indian citizens are primarily involved in the case, both as witnesses and claimants. The
substantial administrative weight of this case should be centered on a court with the most significant contacts with the event.
Thus, a court in Bhopal, rather than New York, should bear the load.

*862 In addition to the burden on the court system, continuation of this litigation in this forum would tax the time and
resources of citizens directly. Trial in this case will no doubt be lengthy. An assigned jury would be compelled to sit for many
months of proof. Because of the large number of Indian language-speaking witnesses, the jurors would be required to endure
continual translations which would double the length of trial. The burden on the jurors themselves, and on their families,
employers and communities would be considerable. The need for translation would be avoided if trial were to be held in
Bhopal.

Clearly, the administrative costs of this litigation are astounding and significant. Despite its deep concern for the victims of
the tragedy, this Court is persuaded by a recent relevant decision of the New York State Court of Appeals. In the opinion
in Islamic Republic of Iran v. Pahlavi, 62 N.Y.2d 474, 478 N.Y.S.2d 597, 467 N.E.2d 245 (1984), cert. denied, ___ U.S. ___,
105 S. Ct. 783, 83 L. Ed. 2d 778 (1985), with reference to a decision discussing actions brought in New York by the Iranian
Government against the Shah and his wife, the Court of Appeals stated that:

 
[T]he taxpayers of this State should not be compelled to assume the heavy financial burden attributable to the cost of
administering the litigation contemplated when their interest in the suit and the connection of its subject matter ... is so
ephemeral.

Islamic Republic at 483, 478 N.Y.S.2d 597, 467 N.E.2d 245 (citations omitted). Administrative concerns weigh against
retention of this case.

 
B. The Interests of India and the United States.

Plaintiffs, and especially amicus curiae emphasize this point of argument in opposition to the motion to dismiss. Concerned
with the asserted possibility of developing a "double-standard" of liability for multinational corporations, plaintiffs urge that
American courts should administer justice to the victims of the Bhopal disaster as they would to potential American victims of
industrial accidents. The public interest is served, plaintiffs and amicus argue, when United States corporations assume
responsibility for accidents occurring on foreign soil. "To abandon that responsibility," amicusasserts, "would both injure our
standing in the world community and betray the spirit of fairness inherent in the American character." (Amicus Brief at 4).
The specific American interests allegedly to be served by this Court's retention of the case include the opportunity of creating
precedent which will "bind all American multinationals henceforward," (Amicus Brief at 20); promotion of "international
cooperation," (Amicus Brief at 22-23); avoidance of an asserted "double standard" of liability, and the prevention of
"economic blackmail of hazardous industries which would extract concessions on health and environmental standards as the
price of continuing operations in the United States." (Amicus Brief at 20). An additional American public interest ostensibly to
be served by retention of the litigation in this forum is advanced by plaintiffs themselves. They assert that the deterrent effect
of this case can be distinguished from the situation in Piper,where the Court rejected the argument that "American citizens
have an interest in ensuring that American manufacturers are deterred from producing defective products, and that additional
deterrence might be obtained if Piper and [its co-defendant] were tried in the United States, where they could be sued on the
basis of both negligence and strict liability." Piper 454 U.S. at 260, 102 S. Ct. at 268. The Court stated that:

 
[T]he incremental deterrence that would be gained if this trial were held in an American court is likely to be insignificant. The
American interest in this accident is simply not sufficient to justify the enormous commitment of judicial time and resources
that would inevitably be required if the case were to be tried here.

Piper at 260-61, 102 S. Ct. at 268. According to plaintiffs, the potential for greater deterrence in this case is "self-evident."

*863 The opposing interest of India is argued to be ill-served by sending this litigation to India. Pointing to the fact that the
Union of India chose this forum, plaintiffs state that there can be "no question as to the public interest of India." (Memo in
Opp. at 91). Union Carbide's statements regarding the interests of India in this litigation are summarily dismissed by the
plaintiffs, who state that "Union Carbide, whose actions caused the suffering of an entire city, has no standing to assert this
belated concern for the welfare of the Indian populace." (Memo in Opp. at 91).

Union Carbide, not surprisingly, argues that the public interest of the United States in this litigation is very slight, and that
India's interest is great. In the main, the Court agrees with the defendant.

As noted, Robert C. Brown states in his affidavit on behalf of Union Carbide that the Indian Government preserved the right
to approve foreign collaboration and import of equipment to be used in connection with the plant. See supra at 856. In
addition, Mr. Brown quoted excerpts from the 1972 Letter of Intent entered into by the Union of India and UCIL, one term of
which required that "the purchase of only such design and consultancy services from abroad as are not available within the
country" would be allowed. (Brown Aff. at 6). Ranjit K. Dutta states that the Indian Government, in a process of
"Indianization," restricted the amount of foreign materials and foreign consultants' time which could be contributed to the
project, and mandated the use of Indian materials and experts whenever possible. (Dutta Aff. at 35). In an alleged ongoing
attempt to minimize foreign exchange losses through imports, the Union of India insisted on approving equipment to be
purchased abroad, through the mechanism of a "capital goods license." (Dutta Aff. at 48-50).

The Indian Government, through its Ministry of Petroleum and Chemicals, allegedly required information from UCIL
regarding all aspects of the Bhopal facility during construction in 1972 and 1973, including "information on toxicity" of
chemicals. (Dutta Aff. at 44). The Ministry required progress reports throughout the course of the construction project. These
reports were required by the Secretariat for Industrial Approvals, the Director General of Technical Development and the
Director of Industries of Madhya Pradesh. (Dutta Aff. at 45). Moreover, UCIL was ultimately required to obtain numerous
licenses during development, construction and operation of the facility. (Dutta Aff. at 46). The list of licenses obtained fills
five pages.[21]

The Indian Government regulated the Bhopal plant indirectly under a series of environmental laws, enforced by numerous
agencies, much as the Occupational Safety and Health Administration, the Environmental Protection Agency and state and
local agencies regulate the chemical industry in the United States. (Dutta Aff. at 53-56). Emissions from the facility were
monitored by a state water pollution board, for example. (Dutta Aff. at 64). In addition, state officials periodically inspected
the fully-constructed plant.[22] (Dutta Aff. at 56). A detailed inquiry into the plant's operations was conducted by the Indian
Government in the aftermath of the December, 1981 fatality at the MIC unit and the February, 1982 incident involving a
pump seal. (Dutta Aff. at 58-62). Numerous federal, state and local commissions, obviously, investigated the most tragic
incident of all, the MIC leak of December, 1984.

The recital above demonstrates the immense interest of various Indian governmental agencies in the creation,
operation, *864 licensing and regulation, and investigation of the plant. Thus, regardless of the extent of Union Carbide's own
involvement in the UCIL plant in Bhopal, or even of its asserted "control" over the plant, the facility was within the sphere of
regulation of Indian laws and agencies, at all levels. The comments of the Court of Appeals for the Sixth Circuit with respect
to its decision to dismiss a products liability action on forum non conveniens grounds seem particularly apposite. In In re
Richardson-Merrell, Inc., 545 F. Supp. 1130 (S.D.Ohio 1982), modified sub. nom. Dowling v. Richardson-Merrell Inc., 727
F.2d 608 (6th Cir.1984), the court reviewed a dismissal involving an action brought by a number of plaintiffs, all of whom
were citizens of Great Britain.[23] Defendant in the action was a drug company which had developed and tested a drug in the
United States which was manufactured and marketed in England. The suit was brought against the American parent, not the
British subsidiary, for injuries allegedly resulting from ingestion of the offending drug in England and Scotland. The district
court, in dismissing the case, stated that:

 
This action involves the safety of drugs manufactured in the United Kingdom and sold to its citizens pursuant to licenses
issued by that government. The interest of the United Kingdom is overwhelmingly apparent. New York, and Ohio [the United
States forums] for that matter, have a minimal interest in the safety of products which are manufactured, regulated and sold
abroad by foreign entities, even though development or testing occurred in this country.

In re Richardson-Merrell, Inc., 545 F. Supp. at 1135 (footnote omitted). The Sixth Circuit confirmed this view of the public
interests, stating:

 
The interest of the United Kingdom in this litigation is great. The drug was manufactured under a British license by British
companies and was marketed and prescribed in the United Kingdom. The alleged injuries took place in England and Scotland
and the plaintiffs are citizens and residents of those countries. When a regulated industry, such as pharmaceuticals in this case
and passenger aircraft operations in Piper Aircraft, is involved, the country where the injury occurs has a particularly strong
interest in product liability litigation.... Though no single factor should be determinative in ruling on a forum non
conveniens motion, the nature of the product and its status as regulated or not must be considered.

Dowling, 727 F.2d at 616.

The Indian government, which regulated the Bhopal facility, has an extensive and deep interest in ensuring that its standards
for safety are complied with. As regulators, the Indian government and individual citizens even have an interest in knowing
whether extant regulations are adequate. This Court, sitting in a foreign country, has considered the extent of regulation by
Indian agencies of the Bhopal plant. It finds that this is not the appropriate tribunal to determine whether the Indian
regulations were breached, or whether the laws themselves were sufficient to protect Indian citizens from harm. It would be
sadly paternalistic, if not misguided, of this Court to attempt to evaluate the regulations and standards imposed in a foreign
country. As another district court stated in the context of a drug product liability action brought by foreign plaintiffs in this
country,

 
*865 Each government must weigh the merits of permitting the drug's use.... Each makes its own determination as to the
standards of degree of safety and duty of care.... This balancing of the overall benefits to be derived from a product's use with
the risk of harm associated with that use is peculiarly suited to a forum of the country in which the product is to be used....
The United States should not impose its own view of the safety, warning, and duty of care required of drugs sold in the United
States upon a foreign country when those same drugs are sold in that country.

Harrison v. Wyeth Laboratories, 510 F. Supp. 1, 4 (E.D.Pa.1980), aff'd mem., 676 F.2d 685 (3d Cir.1982). India no doubt
evaluated its need for a pesticide plant against the risks inherent in such development. Its conclusions regarding "[q]uestions
as to the safety of [products] marketed" or manufactured in India were "properly the concern of that country."  Harrison at 4
(emphasis omitted). This is particularly true where, as here, the interests of the regulators were possibly drastically different
from concerns of American regulators. The Court is well aware of the moral danger of creating the "double-standard" feared
by plaintiffs and amicus curiae. However, when an industry is as regulated as the chemical industry is in India, the failure to
acknowledge inherent differences in the aims and concerns of Indian, as compared to American citizens would be naive, and
unfair to defendant. The district court in Harrison considered the hypothetical instance in which a products liability action
arising out of an Indian accident would be brought in the United States. The court speculated as follows:

 
The impropriety of [applying American standards of product safety and care] would be even more clearly seen if the foreign
country involved was, for example, India, a country with a vastly different standard of living, wealth, resources, level of
health care and services, values, morals and beliefs than our own. Most significantly, our two societies must deal with entirely
different and highly complex problems of population growth and control. Faced with different needs, problems and resources
in our example India may, in balancing the pros and cons ... give different weight to various factors than would our society....
Should we impose our standards upon them in spite of such differences? We think not.

Harrison at 4-5. This Court, too, thinks that it should avoid imposing characteristically American values on Indian concerns.

The Indian interest in creating standards of care, enforcing them or even extending them, and of protecting its citizens from
ill-use is significantly stronger than the local interest in deterring multinationals from exporting allegedly dangerous
technology. The supposed "blackmail" effect of dismissal by which plaintiffs are troubled is not a significant interest of the
American population, either. Surely, there will be no relaxing of regulatory standards by the responsible legislators of the
United States as a response to lower standards abroad. [24] Other concerns than bald fear of potential liability, such as
convenience or tax benefits, bear on decisions regarding where to locate a plant. Moreover, the purported public interest of
seizing this chance to create new law is no real interest at all. This Court would exceed its authority were it to rule otherwise
when restraint was in order.

The Court concludes that the public interest of India in this litigation far outweighs the public interest of the United States.
This litigation offers a developing nation the opportunity to vindicate the suffering of its own people within the framework
of *866 a legitimate legal system. This interest is of paramount importance.[25]

 
C. The Applicable Law.

Gilbert and Piper explicitly acknowledge that the need of an American court to apply foreign law is an appropriate concern on
a forum non conveniens motion, and can in fact point toward dismissal. Gilbert, 330 U.S. at 509, 67 S. Ct. at 843; Piper,454
U.S. at 260, 102 S. Ct. at 268. Especially when, as here, all other factors favor dismissal, the need to apply foreign law is a
significant consideration on this type of motion. Piper at 260, n. 29, 102 S. Ct. at 268, n. 29. A federal court is bound to apply
the choice of law rules of the state in which an action was originally brought; even upon transfer to a different district, "the
transferee district court must be obligated to apply the state law that would have been applied if there had been no change of
venue." Van Dusen v. Barrack, 376 U.S. 612, 639, 84 S. Ct. 805, 821, 11 L. Ed. 2d 945 (1964). Thus, this Court, sitting over a
multidistrict litigation, must apply the various choice of law rules of the states in which the actions now consolidated before it
were brought.[26] Rather than undertake the task of evaluating the choice of law rules of each state separately, the Court will
treat the choice of law doctrine in toto. The "governmental interest" analysis, employed by many jurisdictions, requires a court
to look to the question of which state has the most compelling interest in the outcome of the case. India's interest in the
outcome of the litigation exceeds America's, see supra at 44-58. The lex loci delicti analysis used in other jurisdictions
indicates that the law of the state where the tort occurred should be applied. The place in which the tort occurred was, to a
very great extent, India. Other states apply the "most significant relationship" test, or "weight of contacts" test, which evaluate
in which state most of the events constituting the tort occurred. The contacts with India with respect to all phases of plant
construction, operation, malfunction and subsequent injuries are greater in number than those with the United States. Thus,
under any one of these three doctrines, it is likely that Indian law will emerge as the operative law. An Indian court, therefore,
would be better able to apply the controlling law than would this United States Court, or a jury working with it. This public
interest factor also weighs in favor of dismissal on the grounds of forum non conveniens.

 
CONCLUSION

It is difficult to imagine how a greater tragedy could occur to a peacetime population than the deadly gas leak in Bhopal on
the night of December 2-3, 1984. The survivors of the dead victims, the injured and others who suffered, or may in the future
suffer due to the disaster, are entitled to compensation. This Court is firmly convinced that the Indian legal system is in a far
better position than the American courts to determine the cause of the tragic event and thereby fix liability. Further, the Indian
courts have greater access to all the information needed to arrive at the amount of the compensation to be awarded the
victims.

The presence in India of the overwhelming majority of the witnesses and evidence, both documentary and real, would by
itself suggest that India is the most convenient forum for this consolidated case. The additional presence in India of all but the
less than handful of claimants underscores the convenience of holding trial in India. All of the private interest factors
described in Piper and Gilbert weigh heavily toward *867 dismissal of this case on the grounds of forum non conveniens.

The public interest factors set forth in Piper and Gilbert also favor dismissal. The administrative burden of this immense
litigation would unfairly tax this or any American tribunal. The cost to American taxpayers of supporting the litigation in the
United States would be excessive. When another, adequate and more convenient forum so clearly exists, there is no reason to
press the United States judiciary to the limits of its capacity. No American interest in the outcome of this litigation outweighs
the interest of India in applying Indian law and Indian values to the task of resolving this case.

The Bhopal plant was regulated by Indian agencies. The Union of India has a very strong interest in the aftermath of the
accident which affected its citizens on its own soil. Perhaps Indian regulations were ignored or contravened. India may wish
to determine whether the regulations imposed on the chemical industry within its boundaries were sufficiently stringent. The
Indian interests far outweigh the interests of citizens of the United States in the litigation.

Plaintiffs, including the Union of India, have argued that the courts of India are not up to the task of conducting the Bhopal
litigation. They assert that the Indian judiciary has yet to reach full maturity due to the restraints placed upon it by British
colonial rulers who shaped the Indian legal system to meet their own ends. Plaintiffs allege that the Indian justice system has
not yet cast off the burden of colonialism to meet the emerging needs of a democratic people.

The Court thus finds itself faced with a paradox. In the Court's view, to retain the litigation in this forum, as plaintiffs request,
would be yet another example of imperialism, another situation in which an established sovereign inflicted its rules, its
standards and values on a developing nation. This Court declines to play such a role. The Union of India is a world power in
1986, and its courts have the proven capacity to mete out fair and equal justice. To deprive the Indian judiciary of this
opportunity to stand tall before the world and to pass judgment on behalf of its own people would be to revive a history of
subservience and subjugation from which India has emerged. India and its people can and must vindicate their claims before
the independent and legitimate judiciary created there since the Independence of 1947.

This Court defers to the adequacy and ability of the courts of India. Their interest in the sad events of December 2-3, 1984 at
the UCIL plant in the City of Bhopal, State of Madhya Pradesh, Union of India, is not subject to question or challenge. The
availability of the probative, relevant, material and necessary evidence to Indian courts is obvious and has been demonstrated
in this opinion.

Therefore, the consolidated case is dismissed on the grounds of forum non conveniens under the following conditions:

 
1. Union Carbide shall consent to submit to the jurisdiction of the courts of India, and shall continue to waive defenses based
upon the statute of limitations;
 
2. Union Carbide shall agree to satisfy any judgment rendered against it by an Indian court, and if applicable, upheld by an
appellate court in that country, where such judgment and affirmance comport with the minimal requirements of due process;
 
3. Union Carbide shall be subject to discovery under the model of the United States Federal Rules of Civil Procedure after
appropriate demand by plaintiffs.
Wing On Company v. SYYAP, 64 O.G.8311 (1967)
Facts
Plaintiff Wing On Company is a foreign partnership, with business address in New York County, New York, U.S.A
which did not have a license to transact business in the Philippines. Sometime in the year 1948, the defendant, A. Syyap &
Co., Inc., a domestic corporation, thru its agent, Murray Kern, in New York,, negotiated with the plaintiff for the purchase of
clothing materials under the agreement that the defendant’ would pay the plaintiff the value thereof after the sale of the goods
by the defendant and that the profits derived from such sale would be divided between them.
Accordingly, in1948, the plaintiff shipped to the defendant the clothing materials in question, -worth $22,246.04,
which were received by the latter and eventually sold by it. The defendant, however, was able to pay the plaintiff only the sum
of $3,530.00 on account of the value of the merchandise in leaving a balance of $18,716.04. Despite, however, plaintiff’s
demands on the defendant and its agents, Murray Kern, and the promises of the defendant to pay the account in full, the
defendant failed to settle the said account. Neither was there any accounting or division of the profits made by the defendant
as agreed upon by the parties; hence, the present action was instituted
Appellant‘s contends that
1. The court quo had no jurisdiction to try the case because Wing on is not licensed to do business in the Philippines
therefore, has no legal capacity to sue.
2. That the trial court should have declined jurisdiction over the present suit, pursuant to the principle of forum non -
conveniens in Private International Law “that where the ends of justice strongly indicate that the controversy may be more
suitably tried elsewhere, then jurisdiction should be declined and the parties relegated to relief to be sought in another forum.
Issues:
1. Whether or not Wing on has a legal capacity to sue ?
2. Whether or not the trial court should decline jurisdiction over the case pursuant to the principle of forum non–
conveniens?

HELD:
1. YES. In the case of Marshall-Wells Co. vs. Henry W. Elser, Co., supra, the Supreme Court stated:
“The object of the statute was to subject the foreign corporation doing business in the Philippines to the jurisdiction
of its courts. The object of the statute was not to prevent the foreign corporation from performing single acts, but to
prevent it from acquiring a domicile for the purpose of business’ without taking the steps necessary to render it
amenable to suit in the local courts. The implication of the law is that it was never the purpose of the Legislature to
exclude a foreign corporation which happens to obtain an isolated order, for business from the Philippines, from
securing redress in the Philippine courts, and thus, in effect, to permit persons to avoid the contracts made with such
foreign corporations.
In the case at bar, the facts show that the transaction in question was an isolated act, contract or transaction.
As such, it does not constitute “doing or transacting business” within the meaning of the law; Consequently, the
plaintiff, although a foreign juridical person or entity, not duly licensed to transact business in the Philippines, has the
legal personality to bring and maintain the present suit arising from the transaction in question. In short, in this
particular case, the obtaining of a license to transact business is not a condition precedent to the institution of- the
action. 'It is only when the foreign corporation is doing or transacting business within the purview of the law-that it
has to have a license before it can sue in our courts.

2. NO. There is no merit in this contention. The facts surrounding the present case do not warrant the application of
any recognized rules of Private International Law. It is a well-established practice in the application of the principle
of forum turn conveniens that unless the balance is strongly in favor of the defendant, the plaintiff’s choice of forum
should rarely be disturbed and that, furthermore, the consideration of inadequacy- to enforce the judgment, which is
one of the important factors to be considered in the application of said principle, would precisely constitute a problem
to the plaintiff if the local courts decline to assume jurisdiction on the basis of said principle, considering that the
defendant is a resident of the Philippines. "
It is true that the agreement in question involving the purchase of clothing materials was entered into in New
York, U.S.A. The goods, however, were delivered to, and received and sold by the defendant in this jurisdiction.
Considering that, as above-stated, the Wing On Company of New York may sue in Philippine courts in connection
with the transaction in question and, considering, further, that the present suit arising from said transaction is in the
nature of a personal action, the case may be commenced -- and tried where the defendant-resides or may be found, or
where the plaintiff resides, at the election of the plaintiff. (Section 2b, Kule 4 of the Rules of Court.) Consequently,
venue in the instant case was not improperly laid and the court a quo did not err in taking cognizance of the case. -
(Marshall-Wells Co. vs. Henry W. Elser Co., supra; Kelsen’s Principles of International Law, 52 Ed. pp. 264-256.)
 Republic of the Philippines
SUPREME COURT
Manila

EN BANC

G.R. No. L-32636             March 17, 1930

In the matter Estate of Edward Randolph Hix, deceased. 

A.W. FLUEMER, petitioner-appellant, 
vs.
ANNIE COUSHING HIX, oppositor-appellee.

C.A. Sobral for appellant.

Harvey & O' Brien and Gibbs & McDonough for appellee.

MALCOLM, J.:

The special administrator of the estate of Edward Randolph Hix appeals from a decision of Judge of First Instance Tuason
denying the probate of the document alleged to by the last will and testament of the deceased. Appellee is not authorized to
carry on this appeal. We think, however, that the appellant, who appears to have been the moving party in these proceedings,
was a "person interested in the allowance or disallowance of a will by a Court of First Instance," and so should be permitted to
appeal to the Supreme Court from the disallowance of the will (Code of Civil Procedure, sec. 781, as amended; Villanueva vs.
De Leon [1925], 42 Phil., 780).

It is theory of the petitioner that the alleged will was executed in Elkins, West Virginia, on November 3, 1925, by Hix who
had his residence in that jurisdiction, and that the laws of West Verginia Code, Annotated, by Hogg, Charles E., vol. 2, 1914,
p. 1690, and as certified to by the Director of the National Library. But this was far from a compliance with the law. The laws
of a foreign jurisdiction do not prove themselves in our courts. the courts of the Philippine Islands are not authorized to take
American Union. Such laws must be proved as facts. (In re Estate of Johnson [1918], 39 Phil., 156.) Here the requirements of
the law were not met. There was no was printed or published under the authority of the State of West Virginia, as provided in
section 300 of the Code of Civil Procedure. Nor was the extract from the law attested by the certificate of the officer having
charge of the original, under the sale of the State of West Virginia, as provided in section 301 of the Code of Civil Procedure.
No evidence was introduced to show that the extract from the laws of West Virginia was in force at the time the alleged will
was executed.

In addition, the due execution of the will was not established. The only evidence on this point is to be found in the testimony
of the petitioner. Aside from this, there was nothing to indicate that the will was acknowledged by the testator in the presence
of two competent witnesses, of that these witnesses subscribed the will in the presence of the testator and of each other as the
law of West Virginia seems to require. On the supposition that the witnesses to the will reside without the Philippine Islands,
it would then the duty of the petitioner to prove execution by some other means (Code of Civil Procedure, sec. 633.)

It was also necessary for the petitioner to prove that the testator had his domicile in West Virginia and not establish this fact
consisted of the recitals in the CATHY will and the testimony of the petitioner. Also in beginning administration proceedings
orginally in the Philippine Islands, the petitioner violated his own theory by attempting to have the principal administration in
the Philippine Islands.

While the appeal pending submission in this court, the attorney for the appellant presented an unverified petition asking the
court to accept as part of the evidence the documents attached to the petition. One of these documents discloses that a paper
writing purporting to be the was presented for probate on June 8, 1929, to the clerk of Randolph Country, State of West
Virginia, in vacation, and was duly proven by the oaths of Dana Wamsley and Joseph L. MAdden, the subscribing witnesses
thereto , and ordered to be recorded and filed. It was shown by another document that, in vacation, on June 8, 1929, the clerk
of court of Randolph Country, West Virginia, appointed Claude W. Maxwell as administrator, cum testamento annexo, of the
estate of Edward Randolph Hix, deceased. In this connection, it is to be noted that the application for the probate of the will in
the Philippines was filed on February 20, 1929, while the proceedings in West Virginia appear to have been initiated on June
8, 1929. These facts are strongly indicative of an intention to make the Philippines the principal administration and West
Virginia the ancillary administration. However this may be, no attempt has been made to comply with Civil Procedure, for no
hearing on the question of the allowance of a will said to have been proved and allowed in West Virginia has been requested.
There is no showing that the deceased left any property at any place other than the Philippine Islands and no contention that
he left any in West Virginia.

Reference has been made by the parties to a divorce purported to have been awarded Edward Randolph Hix from Annie
Cousins Hix on October 8, 1925, in the State of West specific pronouncements on the validity or validity of this alleged
divorce.

For all of the foregoing, the judgment appealed from will be affirmed, with the costs of this instance against the appellant. 

Villamor, Ostrand, Johns, Romualdez and Villa-Real, JJ., concur.

 Republic of the Philippines
SUPREME COURT
Manila

EN BANC

G.R. No. L-12105             January 30, 1960

TESTATE ESTATE OF C. O. BOHANAN, deceased. PHILIPPINE TRUST CO., executor-appellee, 

vs.
MAGDALENA C. BOHANAN, EDWARD C. BOHANAN, and MARY LYDIA BOHANAN, oppositors-appellants.

Jose D. Cortes for appellants.

Ohnick, Velilla and Balonkita for appellee.

LABRADOR, J.:

Appeal against an order of the Court of First Instance of Manila, Hon. Ramon San Jose, presiding, dismissing the objections
filed by Magdalena C. Bohanan, Mary Bohanan and Edward Bohanan to the project of partition submitted by the executor and
approving the said project.

On April 24, 195 0, the Court of First Instance of Manila, Hon. Rafael Amparo, presiding, admitted to probate a last will and
testament of C. O. Bohanan, executed by him on April 23, 1944 in Manila. In the said order, the court made the following
findings: 

According to the evidence of the opponents the testator was born in Nebraska and therefore a citizen of that state, or
at least a citizen of California where some of his properties are located. This contention in untenable.
Notwithstanding the long residence of the decedent in the Philippines, his stay here was merely temporary, and he
continued and remained to be a citizen of the United States and of the state of his pertinent residence to spend the rest
of his days in that state. His permanent residence or domicile in the United States depended upon his personal intent
or desire, and he selected Nevada as his homicide and therefore at the time of his death, he was a citizen of that state.
Nobody can choose his domicile or permanent residence for him. That is his exclusive personal right.

Wherefore, the court finds that the testator C. O. Bohanan was at the time of his death a citizen of the United States
and of the State of Nevada and declares that his will and testament, Exhibit A, is fully in accordance with the laws of
the state of Nevada and admits the same to probate. Accordingly, the Philippine Trust Company, named as the
executor of the will, is hereby appointed to such executor and upon the filing of a bond in the sum of P10,000.00, let
letters testamentary be issued and after taking the prescribed oath, it may enter upon the execution and performance
of its trust. (pp. 26-27, R.O.A.).

It does not appear that the order granting probate was ever questions on appeal. The executor filed a project of partition dated
January 24, 1956, making, in accordance with the provisions of the will, the following adjudications: (1) one-half of the
residuary estate, to the Farmers and Merchants National Bank of Los Angeles, California, U.S.A. in trust only for the benefit
of testator's grandson Edward George Bohanan, which consists of several mining companies; (2) the other half of the
residuary estate to the testator's brother, F.L. Bohanan, and his sister, Mrs. M. B. Galbraith, share and share alike. This consist
in the same amount of cash and of shares of mining stock similar to those given to testator's grandson; (3) legacies of P6,000
each to his (testator) son, Edward Gilbert Bohana, and his daughter, Mary Lydia Bohanan, to be paid in three yearly
installments; (4) legacies to Clara Daen, in the amount of P10,000.00; Katherine Woodward, P2,000; Beulah Fox, P4,000; and
Elizabeth Hastings, P2,000;

It will be seen from the above that out of the total estate (after deducting administration expenses) of P211,639.33 in cash, the
testator gave his grandson P90,819.67 and one-half of all shares of stock of several mining companies and to his brother and
sister the same amount. To his children he gave a legacy of only P6,000 each, or a total of P12,000.
The wife Magadalena C. Bohanan and her two children question the validity of the testamentary provisions disposing of the
estate in the manner above indicated, claiming that they have been deprived of the legitimate that the laws of the form
concede to them.

The first question refers to the share that the wife of the testator, Magdalena C. Bohanan, should be entitled to received. The
will has not given her any share in the estate left by the testator. It is argued that it was error for the trial court to have
recognized the Reno divorce secured by the testator from his Filipino wife Magdalena C. Bohanan, and that said divorce
should be declared a nullity in this jurisdiction, citing the case of Querubin vs.Querubin, 87 Phil., 124, 47 Off. Gaz., (Sup, 12)
315, Cousins Hiz vs. Fluemer, 55 Phil., 852, Ramirez vs. Gmur, 42 Phil., 855 and Gorayeb vs. Hashim, 50 Phil., 22. The court
below refused to recognize the claim of the widow on the ground that the laws of Nevada, of which the deceased was a
citizen, allow him to dispose of all of his properties without requiring him to leave any portion of his estate to his wife.
Section 9905 of Nevada Compiled Laws of 1925 provides:

Every person over the age of eighteen years, of sound mind, may, by last will, dispose of all his or her estate, real and
personal, the same being chargeable with the payment of the testator's debts.

Besides, the right of the former wife of the testator, Magdalena C. Bohanan, to a share in the testator's estafa had already been
passed upon adversely against her in an order dated June 19, 1955, (pp. 155-159, Vol II Records, Court of First Instance),
which had become final, as Magdalena C. Bohanan does not appear to have appealed therefrom to question its validity. On
December 16, 1953, the said former wife filed a motion to withdraw the sum of P20,000 from the funds of the estate,
chargeable against her share in the conjugal property, (See pp. 294-297, Vol. I, Record, Court of First Instance), and the court
in its said error found that there exists no community property owned by the decedent and his former wife at the time the
decree of divorce was issued. As already and Magdalena C. Bohanan may no longer question the fact contained therein, i.e.
that there was no community property acquired by the testator and Magdalena C. Bohanan during their converture.

Moreover, the court below had found that the testator and Magdalena C. Bohanan were married on January 30, 1909, and that
divorce was granted to him on May 20, 1922; that sometime in 1925, Magdalena C. Bohanan married Carl Aaron and this
marriage was subsisting at the time of the death of the testator. Since no right to share in the inheritance in favor of a divorced
wife exists in the State of Nevada and since the court below had already found that there was no conjugal property between
the testator and Magdalena C. Bohanan, the latter can now have no longer claim to pay portion of the estate left by the
testator.

The most important issue is the claim of the testator's children, Edward and Mary Lydia, who had received legacies in the
amount of P6,000 each only, and, therefore, have not been given their shares in the estate which, in accordance with the laws
of the forum, should be two-thirds of the estate left by the testator. Is the failure old the testator to give his children two-thirds
of the estate left by him at the time of his death, in accordance with the laws of the forum valid?

The old Civil Code, which is applicable to this case because the testator died in 1944, expressly provides that successional
rights to personal property are to be earned by the national law of the person whose succession is in question. Says the law on
this point:

Nevertheless, legal and testamentary successions, in respect to the order of succession as well as to the extent of the
successional rights and the intrinsic validity of their provisions, shall be regulated by the national law of the person
whose succession is in question, whatever may be the nature of the property and the country in which it is found.
(par. 2, Art. 10, old Civil Code, which is the same as par. 2 Art. 16, new Civil Code.)

In the proceedings for the probate of the will, it was found out and it was decided that the testator was a citizen of the State of
Nevada because he had selected this as his domicile and his permanent residence. (See Decision dated April 24, 1950,  supra).
So the question at issue is whether the estementary dispositions, especially hose for the children which are short of the
legitime given them by the Civil Code of the Philippines, are valid. It is not disputed that the laws of Nevada allow a testator
to dispose of all his properties by will (Sec. 9905, Complied Nevada Laws of 1925, supra). It does not appear that at time of
the hearing of the project of partition, the above-quoted provision was introduced in evidence, as it was the executor's duly to
do. The law of Nevada, being a foreign law can only be proved in our courts in the form and manner provided for by our
Rules, which are as follows:
 SEC. 41. Proof of public or official record. — An official record or an entry therein, when admissible for any
purpose, may be evidenced by an official publication thereof or by a copy tested by the officer having the legal
custody of he record, or by his deputy, and accompanied, if the record is not kept in the Philippines, with a certificate
that such officer has the custody. . . . (Rule 123).

We have, however, consulted the records of the case in the court below and we have found that during the hearing on October
4, 1954 of the motion of Magdalena C. Bohanan for withdrawal of P20,000 as her share, the foreign law, especially Section
9905, Compiled Nevada Laws. was introduced in evidence by appellant's (herein) counsel as Exhibits "2" (See pp. 77-79,
VOL. II, and t.s.n. pp. 24-44, Records, Court of First Instance). Again said laws presented by the counsel for the executor and
admitted by the Court as Exhibit "B" during the hearing of the case on January 23, 1950 before Judge Rafael Amparo (se
Records, Court of First Instance, Vol. 1).

In addition, the other appellants, children of the testator, do not dispute the above-quoted provision of the laws of the State of
Nevada. Under all the above circumstances, we are constrained to hold that the pertinent law of Nevada, especially Section
9905 of the Compiled Nevada Laws of 1925, can be taken judicial notice of by us, without proof of such law having been
offered at the hearing of the project of partition.

As in accordance with Article 10 of the old Civil Code, the validity of testamentary dispositions are to be governed by the
national law of the testator, and as it has been decided and it is not disputed that the national law of the testator is that of the
State of Nevada, already indicated above, which allows a testator to dispose of all his property according to his will, as in the
case at bar, the order of the court approving the project of partition made in accordance with the testamentary provisions, must
be, as it is hereby affirmed, with costs against appellants.

Paras, Bengzon, C.J., Padilla, Bautista Angelo and Endencia, JJ., concur.

Barrera, J., concurs in the result.