concurring:

I concur in the judgment, but write separately to call attention to a conceptual problem in these cases, namely, whether to characterize an unsuccessful Jones Act claim as lacking in subject matter jurisdiction or as failing to state a cause of action. The majority opts for the first category, and has precedent for it, since the Supreme Court in Hellenic Lines, Ltd. v. Rhoditis, 398 U.S. *1076 306, 308 , 90 S.Ct. 1731, 1733 , 26 L.Ed.2d 252 (1970), stated, “[o]f the seven factors (relating to Jones Act coverage) ... four are in favor of the shipowner and against jurisdiction.” (Emphasis added.) I suggest, however, that this was only a passing and unguarded remark.

The real question in these cases is not one of subject matter jurisdiction but simply whether or not there has been a failure to state a claim for relief under the Jones Act. The Supreme Court expressly recognized this analysis in Lauritzen v. Larsen, 345 U.S. 571 , 73 S.Ct. 921 , 97 L.Ed. 1254 (1953), the leading case on the multi-factor test for determining what law should apply to an accident containing both foreign and domestic elements. There the court dismissed the case for failure to state a claim under the Jones Act. It expressly rejected the defendant’s suggestion that it dismiss the case for lack of subject matter jurisdiction, stating:

Id. at 575 , 73 S.Ct. at 924 .

Later Supreme Court and lower court decisions have usually employed the Lauritzen test in the same fashion. See Romero v. International Terminal Operating Co., 358 U.S. 354 , 79 S.Ct. 468 , 3 L.Ed.2d 769 (1959); Koupetoris v. Konkar Intrepid Corp., 535 F.2d 1392 (2d Cir. 1976); Bartholomew v. Universe Tankships, Inc., 263 F.2d 437 (2d Cir. 1959); Chirinos de Alvarez v. Creole Petroleum Corp., 613 F.2d 1240 (3d Cir. 1980); Chiazor v. Transworld Drilling Co., Ltd., 648 F.2d 1015 (5th Cir. 1981); Fisher v. Agios Nicolaos V, 628 F.2d 308 (5th Cir. 1980); Merren v. A/S Borgestad, 519 F.2d 82 (5th Cir. 1975). In light of these authorities, I suggest the appropriate analysis in these cases should be to ask whether there is a failure to state a claim.

Unfortunately, the present case renders this more than a disagreement over semantics. The majority appears to hold that by labeling this a “subject matter jurisdiction” case, we are somehow prevented from considering such important precedents in our own court as Phillips v. Amoco Trinidad Oil Co., 632 F.2d 82 (9th Cir. 1980). The Phillips case is directly in point for us here, and in fact supports our judgment. It should not be pushed aside because it is a choice of law case or failure to state a claim case. In fact the issue is whether or not there is a failure to state a claim, and we resort to standard choice of law principles to answer that question. The majority itself, in the case before us, cites the same factors as Phillips did, namely the Lauritzen case, so I fail to see how Phillips can be inapplicable. The trouble ends where it started, namely by calling this a jurisdictional matter, when failure to state a claim is the real issue.

ORDER AFTER PETITION FOR REHEARING

Before KENNEDY, ALARCON and NELSON, Circuit Judges.

Appellant’s request that this matter not be remanded is granted. The judgment of the district court is affirmed in its entirety. The petition for a rehearing is denied. The mandate shall issue now.