De Oliveira v. Delta Marine Drilling Co.

• Decision Date: 20 June 1983
• Docket Number: No. 82-2024,82-2024
• Citation: 707 F.2d 843
• Parties: Aristeu Fontes DE OLIVEIRA, Plaintiff-Appellee, v. DELTA MARINE DRILLING COMPANY, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 843

707 F.2d 843

1985 A.M.C. 753

Aristeu Fontes DE OLIVEIRA, Plaintiff-Appellee, v. DELTA MARINE DRILLING COMPANY, Defendant-Appellant.

No. 82-2024.

United States Court of Appeals Fifth Circuit.

June 20, 1983.

Rehearing and Rehearing En Banc Denied Aug. 26, 1983.

Dixie Smith and Scott R. Brann, Houston, Tex., for defendant-appellant.

Robert Chaffin, Houston, Tex., for plaintiff-appellee.

Appeal from the United States District Court for the Southern District of Texas.

ON PETITION FOR REHEARING

Before BROWN, GEE and RUBIN, Circuit Judges.

PER CURIAM:

Acting in response to the application for rehearing, we withdraw the prior opinion in this case, 684 F.2d 337 (5th Cir.1982) and substitute the following:

Delta Marine Drilling Co. (Delta) brings an interlocutory appeal from the District Court's denial of its motion to dismiss 527 F.Supp. 332 on grounds of forum non conveniens. Finding that the district court erroneously based its ruling on the single ground that the vessel aboard which the plaintiff was injured had substantial contacts with the United States, we reverse and remand for entry of an order of dismissal conditioned, however, on Delta's consent to appear in the forum it contends to be convenient.

I.

Aristeu Fontes de Oliveira, a Brazilian national and a lifetime resident of Brazil, was employed by Schlumberger, Ltda., a Brazilian corporation operating only in Brazil. Schlumberger contracted with Petrobas, the Brazilian national oil company, to provide well logging services for a well that was being drilled under a separate contract by Delta's Brazilian subsidiary, Perbas, from a drilling platform. De Oliveira and the members of the well-logging crew were transported by crew boat from Aracaju, Brazil, on May 26, 1976, to the vessel, DELTA NINE.

All of the drilling equipment utilized in the operation was provided by Delta and transported on the DELTA NINE. The DELTA NINE is an oceangoing vessel and was on its maiden assignment as a tender vessel. It had been moved adjacent to the platform. When the logging crew arrived, its members were transferred from the crew boat to the vessel by a personnel basket lifted by a crane.

De Oliveira and his coworkers then proceeded to the Petrobas platform via a catwalk gruesomely but accurately known in the trade as a widowmaker. See Law v. Sea Drilling, 510 F.2d 242 (5th Cir.1975). This linked the platform to the DELTA NINE. Many of the tools and the equipment which de Oliveira used were placed on the widowmaker. A Schlumberger engineer was in charge of the well logging crew. The drilling operations were supervised by an American, Dale Clements, who was employed by Delta. Clements was in charge of safety on both the platform and the DELTA NINE.

While de Oliveira was gathering tools on the widowmaker early in the pre-dawn morning of May 27, 1976, a submerged portion of the port anchor chain holding the tender vessel parted. The bow of DELTA NINE drifted downwind from the platform, the widowmaker came unhooked, and de Oliveira tumbled into the sea. As he fell, the widowmaker and his tool box struck him. Although, fortunately, no widow was made, de Oliveira sustained severe injuries, aggravated by his remaining in the water for over half an hour before being brought up to the deck. ¹

In a suit brought in the U.S. District Court for the Southern District of Texas, de Oliveira contended that he was injured by its negligence, the unseaworthiness of the DELTA NINE and the concurrent negligence of his employer, Schlumberger. He joined as codefendants Schlumberger and two Texas corporations, Schlumberger Limited and Schlumberger Well Services, contending that Schlumberger (Brazil) is their alter ego. These claims have now been dismissed, so the only remaining claim is against Delta. Contending that this claim is governed by Brazilian law, Delta moved to dismiss the suit on the basis of forum non conveniens.

In such cases we must decide what body of law applies, United States or foreign. We have held that, if United States law applies, a federal court should entertain the suit. Fisher v. Agios Nicolaos V, 628 F.2d 308, 315 (5th Cir.1980), cert. denied sub nom., Valmas Bros. Shipping, S.A. v. Fisher, 454 U.S. 816, 102 S.Ct. 92, 70 L.Ed.2d 84 (1981); Volyrakis v. M/V ISABELLE, 668 F.2d 863 (5th Cir.1982). But see Piper Aircraft v. Reyno, 454 U.S. 235, 257, 102 S.Ct. 252, 266, 70 L.Ed.2d 419, 437 (1981). If, however, foreign law applies, the court may dismiss the suit if there is another more convenient forum. Fisher v. Agios Nicolaos V, supra, 628 F.2d at 314. If the district court decides that foreign law applies, "its discretion in granting a forum non conveniens dismissal will not ordinarily be disturbed." Id., 628 F.2d at 318. But whether American or foreign law applies, the choice of the applicable law is itself a question of law, and we fully review the district court's choice of law as we would any other legal decision. Bailey v. Dolphin International, Inc., 697 F.2d 1268, 1274 (5th Cir.1983).

II.

To determine what set of legal precepts controls, the district court properly referred to the seven choice of law factors of Lauritzen v. Larsen, 345 U.S. 571, 73 S.Ct. 921, 97 L.Ed. 1254 (1953), as well as the eighth factor added by Hellenic Lines Ltd. v. Rhoditis, 398 U.S. 306, 90 S.Ct. 1731, 26 L.Ed.2d 252 (1970) ("the shipowner's base of operations"), and held that "substantial and significant contacts exist" between the accident and the forum. 527 F.Supp. 332 (S.D.Tex.1981). It reached this conclusion because the complete operation and ultimate control of the work was in the hands of Americans employed by Delta; the vessel could not operate without receiving replacement parts from the United States and without American personnel; the vessel's base of operations was in the United States; de Oliveira's work supported the vessel's mission; and substantial and daily operational control of the DELTA NINE was exercised by Delta from its headquarters in Tyler, Texas. The district court also relied on Delta's failure to show that any remedy available to de Oliveira in Brazil is adequate and certain. We note, however, that no act of negligence at Delta's headquarters is alleged but only the negligence of Clements on the Brazilian job site.

Lauritzen-Rhoditis tell us that we must decide what body of law is applicable by looking at eight factors. We do not merely add up the scores for and against, for the test is neither arithmetic nor mechanistic. Hellenic Lines Ltd. v. Rhoditis, 412 F.2d 919 (5th Cir.1969), aff'd, 398 U.S. 306, 90 S.Ct. 1731, 26 L.Ed.2d 252 (1970), reh. den. 400 U.S. 856, 91 S.Ct. 23, 27 L.Ed.2d 94 (1970). The Supreme Court said, in Rhoditis, "If, as stated in Bartholomew v. Universe Tankships Inc., 263 F.2d 437, the liberal purposes of the Jones Act are to be effectuated, the facade of the operation must be considered as minor, compared with the real nature of the operation and a cold objective look at the actual operational contacts which this ship and this owner have with the United States." In Rhoditis, a Greek citizen was injured in the Port of New Orleans. The Court refused to permit the vessel's "alien owner, engaged in an extensive business operation in this country, ... an advantage over citizens engaged in the same business...." 358 U.S. at 310, 90 S.Ct. at 1734, 26 L.Ed.2d at 256. The "base of operations" test was, under Rhoditis' circumstances, another, albeit an important, factor to add to place of injury and residence of the seaman. It is not a paramount criterion, overriding the seven Lauritzen factors. Thus, in Fisher, we found that United States law "may" apply when the injury occurred in a United States port, the vessel had a substantial base of operations in the United States and its owners derived substantial revenues from United States trade. 628 F.2d at 317.

In Chiazor v. Transworld Drilling Co., Ltd., 648 F.2d 1015 (5th Cir.1981), cert. denied, 455 U.S. 1019, 102 S.Ct. 1714, 72 L.Ed.2d 136 (1982), published after the district court entered its findings, we considered the choice of law problem in the context of a foreign accident. The estate of Chiazor, a Nigerian citizen employed by a Nigerian corporation who suffered fatal injuries on a platform off the coast of...