595 So.2d 615 (La. 1992), 91-C-1524, Miller v. American Dredging Co.

Docket Nº:91-C-1524.
Citation:595 So.2d 615
Case Date:March 02, 1992
Court:Supreme Court of Louisiana

Page 615

595 So.2d 615 (La. 1992)

William Robert MILLER, Sr.



No. 91-C-1524.

Supreme Court of Louisiana.

March 2, 1992

Page 616

Timothy J. Falcon, New Orleans, for applicant.

Thomas J. Wagner, Whitney L. Cole, Wagner & Bagot, New Orleans, Russell S. Stegeman, Gretna, for respondents.

Lawrence S. Kullman, New Orleans, David W. Robertson, Baton Rouge, for amicus curiae, Louisiana Trial Lawyers Association.

J. Dwight LeBlanc, Jr., Kenneth J. Servay, Douglas L. Grundmeyer, Chaffe, McCall, Phillips, Toler & Sarpy, New Orleans, for amicus curiae, Intern. Shipping Federation & Intern. Chamber of Shipping.

George W. Healy, III, New Orleans, Kenneth H. Volk, Lizabeth L. Burrell, New York City, for amicus curiae, Maritime Law Assn.

MARCUS, Justice.

In August 1987, William R. Miller, a Mississippi resident, moved to Pennsylvania and was employed as a seaman by the American Dredging Co. (ADC), a Pennsylvania corporation with its principal place of business in Camden, New Jersey, and with a registered agent for service of process in New Orleans, Louisiana. 1 Miller was injured on the Delaware River while in the course and scope of his employment on the M/V JOHN R., a vessel owned by ADC. He received medical treatment in Pennsylvania and New York, and in February, 1988, returned to Mississippi, where he received additional treatment from physicians in the Mississippi Gulf Coast area. On December 1, 1989, Miller filed a Jones Act (46 U.S.C.App. Sec. 688) and general maritime claim pursuant to the "saving to suitors" provision in 28 U.S.C. Sec. 1333 2 against ADC in the Civil District Court for the Parish of Orleans. ADC filed exceptions of lack of jurisdiction in personam and, alternatively, forum non conveniens. The trial court denied the exception of lack of jurisdiction in personam, but granted the exception of forum non conveniens and ordered the matter dismissed "subject to the right of plaintiff to pursue this claim in a court of competent jurisdiction in Pennsylvania." Miller appealed. The court of appeal affirmed. 3 Upon Miller's application, we granted certiorari to consider the correctness of that decision. 4

The sole issue before us is whether a Louisiana court in a Jones Act/general maritime case is required to apply the federal forum non conveniens law. 5

Forum non conveniens is a doctrine by which a court "may resist imposition upon its jurisdiction even when jurisdiction is authorized by the letter of a general venue statute." Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 67 S.Ct. 839, 91 L.Ed. 1055 (1947). The doctrine has been recognized in federal admiralty law since at least 1801. Bickel, The Doctrine of Forum Non Conveniens as Applied in the Federal Courts in Admiralty, 35 Cornell L.Q. 12 (1949). The modern form of the doctrine in federal courts originated in 1947 in the Gilbert case, and this federal doctrine has been adopted by thirty-two states and the District of Columbia. Robertson & Speck,

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Access to State Courts in Transnational Personal Injury Cases: Forum Non Conveniens and Antisuit Injunctions, 68 Tex.L.Rev. 937, 950 (1990). By contrast, Louisiana courts have refused to apply the common law doctrine of forum non conveniens, finding it "foreign to our jurisprudence." Trahan v. Phoenix Insurance Co., 200 So.2d 118 (La.App. 1st Cir.1967). After Trahan, the legislature enacted article 123 of the Code of Civil Procedure. That article, in its present form, provides:

Art. 123. Forum non conveniens

A. For the convenience of the parties and the witnesses, in the interest of justice, a district court upon contradictory motion, or upon the court's own motion after contradictory hearing, may transfer a civil case to another district court where it might have been brought; however, no suit brought in the parish in which the plaintiff is domiciled, and in a court which is otherwise a court of competent jurisdiction and proper venue, shall be transferred to any other court pursuant to this Article.

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 in the interest of justice, the court may dismiss the suit without prejudice; however, no suit in which the plaintiff is domiciled in this state, and which is brought in a court which is otherwise a court of competent jurisdiction and proper venue, shall be dismissed pursuant to this Article. In the interest of justice, and before the rendition of the judgment of dismissal, the court shall require the defendant or defendants to file with the court a waiver of any defense based upon prescription, provided that a suit on the same cause of action is commenced in a court of competent jurisdiction within sixty days from the rendition of the judgment of dismissal.

C. The provisions of Paragraph B shall not apply to claims brought pursuant to 46 USC Sec. 688 [the Jones Act] or federal maritime law.

[Emphasis added].

Louisiana courts may not dismiss cases for forum non conveniens except as provided in this article. Fox v. Board of Supervisors, 576 So.2d 978 (La.1991).

A clear reading of article 123(C) leads to the conclusion that the doctrine of forum non conveniens is specifically made unavailable in a Jones Act or maritime law case. That was the holding of this court in Markzannes v. Bermuda Star Line, 545 So.2d 537 (La.1989) (per curiam), cert. denied, 493 U.S. 1043, 110 S.Ct. 837, 107 L.Ed.2d 832 (1990), and the court of appeal in Kassapas v. Akron Shipping Agency, Inc., 485 So.2d 565 (La.App. 5th Cir.1986), writ denied, 488 So.2d 203 (La.1986), cert. denied, 479 U.S. 940, 107 S.Ct. 422, 93 L.Ed.2d 372 (1986). However, the lower courts in the instant case chose not to rely on those precedents, finding instead that the doctrine of forum non conveniens is a "characteristic feature of the general maritime law" governed by federal, rather than state, law. In support, the court of appeal cited the federal Fifth Circuit's opinions in Ikospentakis v. Thalassic S.S. Agency, 915 F.2d 176 (5th Cir.1990), and 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).

As a general proposition, a maritime claim brought in state courts is governed by the same principles as govern actions brought in admiralty, i.e., federal maritime law. Green v. Industrial Helicopters, 593 So.2d 634 (La.1992) (citing Powell v. Offshore Navigation, Inc., 644 F.2d 1063, 1065 n. 5 (5th Cir.1981)). However, it is well settled that a state court, having...

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