Miller v. American Dredging Co.

• Citation: 580 So.2d 1091
• Decision Date: 30 May 1991
• Docket Number: No. 90-CA-2175,90-CA-2175
• Parties: William R. MILLER, Sr. v. AMERICAN DREDGING COMPANY. 580 So.2d 1091, 1991 A.M.C. 2381
• Court: Court of Appeal of Louisiana (US)

Page 1091

580 So.2d 1091

William R. MILLER, Sr. v. AMERICAN DREDGING COMPANY.

No. 90-CA-2175.

580 So.2d 1091, 1991 A.M.C. 2381

Court of Appeal of Louisiana, Fourth Circuit.

May 30, 1991.

Thomas J. Wagner, Whitney L. Cole, Wagner & Bagot, New Orleans, for defendant/appellee.

Timothy J. Falcon, New Orleans, for plaintiff/appellant.

Before KLEES, LOBRANO and WARD, JJ.

LOBRANO, Judge.

The issue in this litigation is whether the federal maritime defense of "forum non conveniens" is applicable to this Jones Act claim filed in state court.

William R. Miller, plaintiff, is a resident of Mississippi. In August of 1987 he travelled to Pennsylvania seeking employment. He joined the Union of Operating Engineers, Local 25 in Philadelphia. He was hired by American Dredging Company (ADC), a Pennsylvania Corporation to work on the tug "John R". On or about December 12, 1987, while aboard that vessel navigating the Delaware River, Miller was injured. Initially he was treated at the Sacred Heart Medical Center in Chester, Pennsylvania. He received additional treatment at the Hospital for Joint Diseases Orthopedic Institute located in New York. In February, 1988 Miller returned to Mississippi where he has been treated by various doctors along the Mississippi Gulf Coast.

ADC's principal office is in Camden, New Jersey. Although ADC is licensed to do business in Louisiana, the tug "John R" has never navigated Louisiana waters.

Miller filed the instant Jones Act and General Maritime Claim in the Civil District Court for the Parish of Orleans. Service was perfected on ADC's registered agent. In response ADC filed exceptions of lack of in personam jurisdiction and forum non conveniens.

The trial court denied ADC's exception to the jurisdiction but granted the forum non conveniens exception. The court dismissed Miller's suit "subject to the right of plaintiff to pursue this claim in a court of competent jurisdiction in Pennsylvania." The trial court reasoned that state courts must apply the forum non conveniens rule of the general maritime law in this maritime proceeding instituted in state court. Miller perfects this appeal.

The forum non conveniens defense is a characteristic feature of the general maritime law. Ikospentakis v. Thalassic S.S. Agency, 915 F.2d 176 (5th Cir.1990). In Exxon Corp. v. Chick Kam Choo, 817 F.2d 307 (5th Cir.1987), rev'd on other grounds, 486 U.S. 140, 108 S.Ct. 1684, 100 L.Ed.2d 127 (1988), the U.S. Fifth Circuit stated:

"Under the federal uniformity doctrine state courts must apply the forum non conveniens rule of the general maritime law in any case brought before them by citizens of foreign lands over which the federal courts would have admiralty jurisdiction. State law inconsistent with that doctrine cannot be applied in a maritime defense." Id. at 324.

Despite this clear federal jurisprudence, Miller argues that the trial court erred. In support, he cites Code of Civil Procedure Article 123, and our Supreme Court's "per curiam" opinion in Markzannes v. The Bermuda Star Line, 545 So.2d 537 (La.1989).

In Markzannes, this Court, in an unpublished opinion, held that the state district court must apply the forum non conveniens rule of general maritime law where a foreign citizen brought an admiralty suit in state court. In a per curiam opinion, our Supreme Court, citing La.C.C.Pro. Art. 123(C), held that "Louisiana courts may apply Louisiana procedural law in causes of action brought in Louisiana Courts."

Code of Civil Procedure Article 123, sections B and C provide as follows:

"B. Except as provided in Paragraph C, upon the contradictory motion of any defendant in a civil case filed in a district court of this state in which a claim or cause of action is predicated solely upon a federal statute and is based upon acts or omissions originating outside of this state, when it is shown that there exists a more appropriate forum outside of this state, taking into account the location where the acts giving rise to the action occurred, the convenience of the parties and witnesses, and the interest of justice, the court may dismiss the suit without prejudice; however,...