Humble Oil & Refining Company v. Bell Marine Service, Inc.

• Decision Date: 26 July 1963
• Docket Number: No. 20132.,20132.
• Parties: HUMBLE OIL & REFINING COMPANY and Cargo Carriers, Inc., Appellants, v. BELL MARINE SERVICE, INC., Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

321 F.2d 53 (1963)

HUMBLE OIL & REFINING COMPANY and Cargo Carriers, Inc., Appellants, v. BELL MARINE SERVICE, INC., Appellee.

No. 20132.

United States Court of Appeals Fifth Circuit.

July 26, 1963.

Joseph Newton, James K. Nance, Houston, Tex., Fulbright, Crooker, Freeman, Bates & Jaworski, Houston, Tex., Richard H. Brown, Jr., Kirlin, Campbell & Keating, New York City, of counsel, for appellants.

John K. Meyer, Hinds & Meyer, Houston, Tex., for appellee.

Before HUTCHESON, GEWIN, and BELL, Circuit Judges.

GRIFFIN B. BELL, Circuit Judge.

This appeal is from the denial by the District Court of motions of claimants to transfer a limitation of liability proceeding¹ from the United States District Court for the Southern District of Texas to the United States District Court for the Eastern District of Louisiana under Admiralty Rule 54. This rule, in pertinent part, provides:

"* * * The District Court may, in its discretion, transfer the proceedings to any district for the convenience of the parties. * * *."

The limitation proceeding, of necessity, was filed in the Texas Court. The Tug ISABEL S. GARRETT, the vessel involved, was in that district. It had not been libeled, and no suit had been filed against its owner.² The filing was during the six months limitation period, September 30, 1961.³ Appellants filed claims in that proceeding in November 1961, and motions to transfer in January 1962. The motions were denied on February 21, 1962. The District Court also declined to certify the order of denial for interlocutory appeal as a controlling question of law pursuant to 28 U.S.C.A. § 1292(b).

Thereupon appellants petitioned this court for a writ of mandamus directing the District Judge to enter the order of transfer sought. This court denied leave to file the petition for the writ, without prejudice however to the rights of the parties to pursue steps leading to an interlocutory appeal under 28 U.S. C.A. § 1292(b). The court thought it inappropriate to determine the propriety of the order denying transfer in the context of a mandamus proceeding⁴ until such time as it was finally determined that there was no other way to review the denial of transfer, and suggested that the matter might be resubmitted to the District Court for reconsideration on the merits, or on the desirability of certifying the question as an interlocutory appeal under § 1292(b), supra. In Re Humble Oil & Refining Company, 5 Cir., 1962, 306 F.2d 567.

Upon remand the District Judge again denied the motion to transfer, but certified the question under § 1292(b) as had been suggested.⁵

This matter arises out of a collision on the Mississippi River. The Tug ISABEL S. GARRETT departed Delcambre, Louisiana on March 28, 1961, towing the loaded salt barges L-1 and M-65 for Cargo Carriers, Inc., and arrived in Baton Rouge, Louisiana on March 30. The barges were moored by the crew of the tug at a location known as Jackson's Landing, operated by Jackson Marine Co., Inc., and serviced by the Tug JOHN E. COON, owned by Baton Rouge Coal & Towing Company. During that night these two unmanned and unlighted barges went adrift from the landing and collided several miles down river with the SS ESSO ZURICH, owned by Humble Oil & Refining Co., at 3:32 A.M. Both barges were sunk and the ESSO ZURICH was damaged.

Bell Marine Service, Inc., appellee here, as owner of the tug, then filed the petition for exoneration from or limitation of its liability. The District Court issued the customary restraining order against the prosecution of suits elsewhere against Bell or the ISABEL S. GARRETT. In response to the limitation petition Humble filed a claim for damages to the ESSO ZURICH, and Cargo Carriers filed for its contingent liability to third parties for damages arising from the collision.

According to the sworn allegations of the limitation petition, the fault in letting the barges go adrift from Jackson's Landing, if any, was that of Cargo Carriers, Inc., which had general supervision of the entire operation, Jackson Marine Co., Inc., the Tug JOHN E. COON, and Baton Rouge Coal & Towing Company, or one or more of them. The Tug JOHN E. COON, Baton Rouge Coal & Towing Company, and Jackson Marine Co., Inc., as well as the wrecks of the Barges M-65 and L-1, were all situated in the Eastern District of Louisiana, and were not amenable to the process of the United States District Court for the Southern District of Texas. Humble thereafter filed its libel against Cargo Carriers, the Tug JOHN E. COON, Baton Rouge Coal & Towing Company, Jackson Marine Co., Inc., the Barges M-65 and L-1, and five of Bell's underwriters in the United States District Court for the Eastern District of Louisiana, New Orleans Division. Bell could not be named as a party to this Louisiana suit because of the Texas District Court restraining order.⁶ The underwriters were made respondents under the Louisiana Direct Action Statute. LSA-R.S. 22:655.

The relevant considerations, among others, which support the denial of transfer were that three members of the crew of the Tug ISABEL S. GARRETT were to be used as witnesses by Bell. They were residents of the State of Texas, no longer employed by Bell or under its control, and none were subject to compulsory process in Louisiana and thus Bell on transfer would be unable to present live witnesses. They were named, and their probable testimony, which appeared crucial, was described in an affidavit. This was also true as to another witness of Bell's, its former port captain. Two of the three parties, Bell and Humble, had principal offices in Houston, Texas and no party had its principal office in Louisiana. Officers of Bell and Humble resided in Texas, and no officer of any party resided in Louisiana. The Tug ISABEL S. GARRETT was registered in Houston, and the ESSO ZURICH was registered in the port of Wilmington, Delaware. Only one of Humble's witnesses resided in Louisiana, the rest residing in other states including Texas. The evidence of damage to Humble's vessel would come from Florida.

On the other hand, the manager of Cargo Carriers was in Louisiana and he stated that its witnesses were in Louisiana but he neither named them nor described their testimony. The damaged vessel of Humble, the ESSO ZURICH, at the time of the collision was under the conn of a Louisiana pilot. She called at Houston as well as Louisiana ports. And, of course, the related litigation was pending in Louisiana with the attendant savings in time and cost if there could be a consolidated trial.

In addition to these factors, the court considered that the limitation proceeding was brought in the Texas court and accorded a presumption in favor of that forum, venue having been first laid there. We treat this as a burden of proof question rather than one of a presumption. Bell, under the rule and the facts appertaining, had no choice of venue. But, of course, he who seeks the transfer must show good cause. Appellants could have selected the forum by libeling the vessel while it was in another district, or by filing suit against Bell in Louisiana. Not having done so, the burden was cast upon them to show good cause for the transfer.

Whether or not the transfer was indicated was a matter to be weighed and decided by the District Judge in his discretion upon a consideration of all of the factors. See Norwood v. Kirkpatrick, 1954, 349 U.S. 29, 75 S.Ct. 544, 99 L.Ed. 789; and Ex parte Chas. Pfizer & Co., 5 Cir., 1955, 225 F.2d 720, on transfers under § 1404(a). See Gulf Oil Corp. v. Gilbert, 1947, 330 U.S. 501, 67 S.Ct. 839, 91 L.Ed. 1055, a forum non conveniens case, for a compilation of factors which may be involved in determining the transfer question, although the avoidance of dismissal through § 1404(a) lessens the weight to be given the choice of forum factor, and to that extent broadens the discretion of the District Court. Here Admiralty Rule 54 rather than § 1404(a) applied but transfer under that rule is also discretionary. Petition of Clipper Fishing Corporation, S.D.N.Y., 1958, 168 F.Supp. 130. In Chas. Pfizer & Co., a mandamus proceeding, we said:

"* * * in the absence of a failure of the District Court to correctly construe and apply the statute, or to consider the relevant factors incident to ruling upon a motion to transfer, or unless it is necessary to correct a clear abuse of discretion, a Court of Appeals should not entertain motions for Writs of Mandamus to direct District Courts to enter or vacate orders of

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