Bailey v. Dolphin Intern., Inc.
| Decision Date | 17 February 1983 |
| Docket Number | No. 82-2060,82-2060 |
| Citation | 697 F.2d 1268 |
| Parties | Bruce A. BAILEY, as special administrator for the estate of Joseph Roman Buenaflor, deceased, et al., Plaintiffs-Appellants, v. DOLPHIN INTERNATIONAL, INC., et al., Defendants-Appellees. Summary Calendar. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Frank T. Abraham, Houston, Tex., for plaintiffs-appellants.
Ben L. Reynolds, Houston, Tex., for Union Oil Co. et al.
Jack Allbritton, Houston, Tex., for Dolphin Intern.
Stephen E. Ulrich, Houston, Tex., for Union Oil of Indonesia and Union Oil of Cal.
Appeal from the United States District Court for the Southern District of Texas.
Before RUBIN, JOHNSON and GARWOOD, Circuit Judges.
This is an appeal from an order of the district court conditionally dismissing a maritime wrongful death action brought under the Jones Act, 46 U.S.C. Sec. 688, and alternatively, under the Death on the High Seas Act, 46 U.S.C. Sec. 761, by appellants, the survivors of a Filipino permanent resident and citizen who was drowned off the coast of Balikpapan, Indonesia, when the Bali Dolphin, a nonself-propelled jack-up drilling rig on which the decedent had been a crew member for approximately two years, capsized while being towed a short distance to another offshore drilling site. The primary question is whether American law applies to appellants' claim, and if not, whether the district court abused its discretion in dismissing the case based on the doctrine of forum non conveniens. We hold that, in the context of this case, American law does not govern appellants' claim, and that the district court did not abuse its discretion in conditionally dismissing the case. However, because we feel that the order of dismissal, though made subject to certain conditions, may fail to adequately protect appellants' interests, the case is reversed and remanded so that the district court may fashion a more appropriate order.
The Bali Dolphin was built in the United States in 1966, and was purchased and refitted by appellee Dolphin International S.A. ("Dolphin S.A.") in either 1972 or 1973. Since its acquisition by Dolphin S.A., the Bali Dolphin has worked almost exclusively in Southeast Asia. Since 1975, the Bali Dolphin and its nonself-propelled drilling tender vessel, the Green Dolphin, which are operated as a unit, have been stationed off the coast of Indonesia, drilling in the shallow water areas near Balikpapan, East Kalimanton, Indonesia. 1 Both the Bali Dolphin and the Green Dolphin are registered under the laws of Panama, and they fly the Panamanian flag.
The owner of these vessels, Dolphin S.A., is a Panamanian corporation which is wholly owned by appellee Dolphin International, Inc. ("Dolphin, Inc."), a Texas corporation. Dolphin Inc. is a wholly owned subsidiary of Quatro A/S, a Norwegian corporation whose shares are owned entirely by Norwegian citizens. 2 Both Dolphin S.A. and Dolphin, Inc. maintain their principal places of business at the same address in Houston, Texas. Dolphin, Inc. is a drilling contractor engaged in offshore drilling operations solely in the territorial waters of, and on the Continental Shelf of, the United States, primarily in the Gulf of Mexico. Dolphin S.A., also a drilling contractor, is engaged in offshore drilling operations, with the exception of the United States and its Continental Shelf, throughout the world, primarily in Spain, the North Sea, and Southeast Asia. 3
From 1973 to 1979, Dolphin S.A.'s Southeast Asia operations were conducted out of Singapore, under the direction of area manager L.F. Anderson. 4 Also in the Singapore In November 1976, Dolphin S.A. entered into an offshore drilling contract with appellee Union Oil Company of Indonesia ("Union-Indonesia") whereby Dolphin S.A. agreed to drill offshore exploratory wells for Union-Indonesia in its concession areas off the coast of East Kalimanton. 7 Under this contract, Dolphin S.A. agreed to drill the wells using the Bali Dolphin/Green Dolphin unit. Union-Indonesia agreed to obtain all permits and licenses from the Indonesian government for the drilling operations contemplated by the contract. 8 The contract between Union-Indonesia and Dolphin S.A. was signed and partially negotiated by Anderson in either Singapore or Djakarta, Indonesia, although it was first approved in principal in the United States. Payments under the contract were made by Union-Indonesia to Dolphin S.A. in Balikpapan.
office, which consisted of eight to ten employees, was M.L. King, 5 the rig manager and drilling superintendent for the Bali Dolphin, as well as an administrative support staff, all of whom at the time in question lived in Singapore. 6
Union-Indonesia is a California corporation, which conducts its drilling operations solely in Indonesia. It is a wholly owned subsidiary of appellee Union Oil Company of California ("Union-California") which is also a California corporation. Both corporations maintain their principal places of business in Los Angeles, California, and, like the Dolphin companies, they have the same office address. Union-Indonesia also maintains offices in Djakarta and in Balikpapan.
Appellants' decedent, Joseph Roman Buenaflor ("Buenaflor") was hired by Dolphin S.A. in Singapore on August 2, 1974, to work as an electrician. Buenaflor signed a standard expatriate employment contract, which was written in English. The contract provided, among other things, that Buenaflor was covered by the company's group insurance plan, which was placed with Philadelphia Life Insurance Company. Pursuant to Buenaflor's request at the time he was hired, Dolphin S.A. deposited his paychecks, which were drawn on its bank account at Capital National Bank in Houston and made payable in U.S. currency, into an account maintained by Buenaflor at the Bank of America in San Francisco, California. 9 Buenaflor, however, remained at all times a citizen of the Philippines and maintained his permanent residence there in Cavite City. 10
After being hired by Dolphin S.A., Buenaflor was assigned to the Green Dolphin, which subsequently joined with the Bali Dolphin. After 1975, the Green Dolphin and the Bali Dolphin were stationed in shallow water areas off the coast of Balikpapan, in the Makasar Strait. 11 Buenaflor would work on either the rig or the tender, wherever electrical problems arose. On the morning of September 16, 1977, the Bali Dolphin capsized and sank while being towed a short distance to a new drilling site in the Makasar Strait. 12 The sinking occurred about five miles from the shore in Indonesian territorial waters. The rig was being towed by three tug boats, the Permina Supply No. 6, the Permina Supply No. 15, and the Permina Supply Sentoso, each owned, operated, and crewed by P.T. Pertamina Tongkang ("Pertamina"), an Indonesian corporation which was an affiliate of the Indonesian National Oil Company, P.N. Pertambangan Minjak Dan Gas Bumi Nasional. Dave Hill, at that time an employee of Union-Indonesia who was on board the Bali Dolphin when the accident occurred, was in command of the rig and was coordinating the movements of the tugs which, under the Dolphin S.A.-Union-Indonesia drilling contract, was Union-Indonesia's responsibility. Also on board the Bali Dolphin were five Dolphin S.A. "expatriate employees," among them Buenaflor, and Harold Ogden, who in King's absence was the acting rig manager, and seven Dolphin S.A. Indonesian (or local) employees. 13 It is undisputed that Buenaflor was drowned in the sinking while in the course and scope of his employment with Dolphin S.A. He had been on board that day so as to be able to moniter the electrical equipment when the rig reached its new location and was jacked up.
At the time of the accident, the day-to-day decisions, supervision, and control of the activities and operations of the Bali Dolphin, and the implementation of policy or decisions made in Houston, were carried out and made in Singapore or Indonesia by Anderson and his staff.
On September 14, 1978, appellant Bruce A. Bailey, as special administrator of the estate of Buenaflor, 14 filed a wrongful The Texas district court, after first applying the choice of law factors of Lauritzen v. Larsen, 345 U.S. 571, 73 S.Ct. 921, 97 L.Ed. 1254 (1953), and Hellenic Lines, Ltd. v. Rhoditis, 398 U.S. 306, 90 S.Ct. 1731, 26 L.Ed.2d 252 (1970), determined that 20
death suit in the federal district court for the Northern District of California against Dolphin, Inc., Union-Indonesia, Pertamina, the three tug boats involved in the accident, and Insurance Company of North America ("INA"). 15 Dolphin, Inc. filed a motion for dismissal which attacked both the personal and subject matter jurisdiction of the court, venue, and alleged a failure to state a claim upon which relief could be granted. Fed.R.Civ.P. 12(b). The district court, without acting on the other grounds in the motion, found that it lacked personal jurisdiction over Dolphin, Inc., and therefore transferred the entire case to the Southern District of Texas, Houston Division, pursuant to 28 U.S.C. Sec. 1406(a). 16 Thereafter, appellants amended their complaint to add as defendants, Dolphin S.A. and Union-California. Pertamina and its three tugs were voluntarily dismissed. 17 Appellees then moved to dismiss the action based on the doctrine of forum non conveniens. 18
American law did not apply to appellants' claim. 19 The court then considered the forum non conveniens factors of Gulf Oil Corporation v. Gilbert, 330 U.S. 501, 67 S.Ct. 839, 91 L.Ed. 1055 (1947), and...To continue reading
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