730 F.2d 211 (5th Cir. 1984), 82-2388, Koke v. Phillips Petroleum Co.

Docket Nº82-2388, 82-2389.
Citation730 F.2d 211
Party NameColin KOKE, Plaintiff-Appellant, v. PHILLIPS PETROLEUM COMPANY, Phillips Petroleum Company Norway, A Wholly Owned Subsidiary of Phillips Petroleum Co., Sedco, Inc., and Oceaneering International, Inc., Jointly and Severally, Defendants-Appellees. Dermot P. O'SULLIVAN, Plaintiff-Appellant, v. PHILLIPS PETROLEUM CO., et al., Defendants-Appellees.
Case DateApril 05, 1984
CourtUnited States Courts of Appeals, Court of Appeals for the Fifth Circuit

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730 F.2d 211 (5th Cir. 1984)

Colin KOKE, Plaintiff-Appellant,


PHILLIPS PETROLEUM COMPANY, Phillips Petroleum Company

Norway, A Wholly Owned Subsidiary of Phillips Petroleum Co.,

Sedco, Inc., and Oceaneering International, Inc., Jointly

and Severally, Defendants-Appellees.

Dermot P. O'SULLIVAN, Plaintiff-Appellant,


PHILLIPS PETROLEUM CO., et al., Defendants-Appellees.

Nos. 82-2388, 82-2389.

United States Court of Appeals, Fifth Circuit

April 5, 1984

Page 212

The Jaques Admiralty Law Firm, Leonard C. Jaques, Detroit, Mich., for plaintiffs-appellants.

M. David Frock, Houston, Tex., for Phillips Petroleum Co. and Norway Div.

Vinson & Elkins, Eugene J. Silva, Frank Spagnoletti, Houston, Tex., for Sedco, Inc.

Royston, Rayzor, Vickery & William, James Patrick Cooney, Tobi A. Tabor, W. Robins Brice, Houston, Tex., for Oceaneering Intern.

Appeals from the United States District Court for the Eastern District of Texas.

Before GEE and GARWOOD, Circuit Judges, and EAST [*], District Judge.

GARWOOD, Circuit Judge:

This is an appeal from orders of the district court conditionally dismissing two actions, each brought under the Jones Act, 46 U.S.C. Sec. 688 (1976), and the general maritime law. Because of the similarity of the appellants' claims, they have been consolidated for this appeal. The primary questions for this Court's review are (1) whether the conditional orders are appealable, and (2) whether American law applies to the appellants' claims and, if not, whether the district court abused its discretion in dismissing the case for forum non conveniens. Because we find that the conditional orders in these cases effected in essence a dismissal of the appellants' claims without

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prejudice, we hold that they are appealable as final orders under 28 U.S.C. Sec. 1291. We further hold that the district court correctly determined that American law does not apply to the appellants' claims and that the court did not abuse its discretion in dismissing for forum non conveniens. Therefore, we affirm.



The appellants in these consolidated cases, Colin Koke and Dermot O'Sullivan, are British subjects who received injuries in October 1978 and October 1979, respectively, while working as divers aboard the Sedco/Phillips SS. At the time of their injuries, the vessel, which flies the American flag, was in the Norwegian sector of the North Sea.

The Sedco/Phillips SS is a large self-contained, semi-submersible vessel that services the Ekofisk oil field facilities in the North Sea. It was constructed in Japan under a contract between Sedco, Inc. (Sedco) and Phillips Petroleum Company Norway (Phillips of Norway), a wholly owned subsidiary of Phillips Petroleum Company. Although the Sedco/Phillips SS can move under its own power, it was towed from Japan to the North Sea in 1977 where it has remained since that date. 1 The vessel has never operated in nor traveled through the territorial waters of the United States.

According to the agreement between Sedco and Phillips of Norway, the Sedco/Phillips SS has two primary functions: (1) servicing and repair of offshore production facilities; and (2) support of offshore pipeline inspection and repair. Other functions are fire fighting, support of offshore construction, and pollution control. The vessel performs its work while anchored over a location. Although its usual area of operation is the Norwegian sector of the North Sea, it may also be required to travel into the English and German sectors to repair and service the pipelines that extend into these sectors.

Sedco, an American corporation with its principal place of business in Dallas, Texas, owns the vessel and is responsible for its operation, including the supervision of moving operations and positioning on location. Support services for the day-to-day activities of the vessel are provided by a subcontractor of Sedco, from an office in Stavenger, Norway.

The Sedco/Phillips SS is chartered by Phillips of Norway, a Delaware corporation that has its principal place of business in Norway and operates in the Ekofisk fields under production licenses granted by the Norwegian government. Under agreements related to these licenses, Phillips of Norway is required to have half of its directors residents of Norway, and to refrain from any activities other than in Norway. Phillips of Norway is a wholly owned subsidiary of defendant Phillips Petroleum Company (Phillips), also a Delaware corporation, with its principal place of business in Oklahoma.

Defendant Oceaneering International, Inc. (Oceaneering U.S.), a Delaware corporation with its principal place of business in Houston, Texas, is the parent company of Oceaneering International A.G. (OIAG), a Swiss corporation and the employer of plaintiff-appellant Colin Koke, and of Oceaneering International Services, Ltd. (OISL), a United Kingdom corporation with a base of operations in Aberdeen, Scotland and the employer of plaintiff-appellant Dermot O'Sullivan. OIAG and OISL provided diving services to the Sedco/Phillips SS under a contract between Phillips of Norway and

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Oceaneering Norway A/S, a Norwegian corporation which is another wholly (or majority) owned subsidiary of Oceaneering U.S. 2

Appellants, Koke and O'Sullivan, brought suit under the Jones Act and the general maritime law of the United States against Phillips, Phillips of Norway, Sedco, and Oceaneering U.S. in the Eastern District of Texas. The defendants moved to dismiss on the basis of forum non conveniens. After a hearing, the district court first determined that American law was not applicable to the suit under the standards established by the Supreme Court in the Lauritzen-Rhoditis-Romero trilogy 3 as applied by this Court to cases involving "the context of 'fixed rig' operations" 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). The court next determined that a dismissal for forum non conveniens was appropriate based on the private and public interest factors set forth in Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 67 S.Ct. 839, 91 L.Ed. 1055 (1947). After indicating in each case that "it is hereby ... ordered that the plaintiff's complaint be dismissed," the court stated that the dismissal was conditioned on three requisites: (1) that all defendants consent to jurisdiction in a single appropriate foreign forum; (2) that all defendants waive any defense regarding the statute of limitations; and (3) that all defendants consent to satisfying any judgment rendered by such court. The court further indicated that it would "reassume jurisdiction and move the case towards its resolution" should any of the defendants fail to satisfy the conditions.



Courts of appeal are courts of limited jurisdiction. Generally, they may hear appeals only from judgments that are final under 28 U.S.C. Sec. 1291. 4 The threshold question for this Court, therefore, is whether the conditional orders in this case are appealable as final judgments. In addressing this issue, we note that none of the parties has raised a question regarding this Court's jurisdiction. This Court, however, has the duty to examine the basis of its jurisdiction, and by its own motion if necessary. Save the Bay, Inc. v. United States Army, 639 F.2d 1100, 1102 (5th Cir.1981). Further, it is irrelevant that the parties, who submitted briefs on this issue at the request of this Court, all assert that the orders are appealable. Jurisdiction cannot be conferred on this Court by agreement where it is otherwise lacking under section 1291. Matter of Kutner, 656 F.2d 1107, 1110 (5th Cir.1981), cert. denied sub nom., Stewart v. Kutner, 455 U.S. 945, 102 S.Ct. 1443, 71 L.Ed.2d 658 (1982).

Dismissals for forum non conveniens, unlike transfers under 28 U.S.C. Sec. 1404(a), have been considered final and appealable by right. Menendez Rodriguez v. Pan American Life Insurance Co., 311 F.2d 429, 432 (5th Cir.1962). See also 15 Wright, Miller & Cooper, Federal Practice & Procedure, Jurisdiction Sec. 3914 (1976). A question arises in this case, however, because of the protective conditions contained in the orders of dismissal. The orders indicate that "this dismissal is conditioned on three requisites" and that "should any of the above conditions not be met ... this court will reassume jurisdiction ...." The issue is whether these conditions destroy the finality of the forum

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non conveniens dismissal. 5 Based on our review of the applicable legal principles, we find that they do not.

This Court has recognized the final judgment rule as the "dominant rule of federal appellate practice." In re 1975-2 Grand Jury Investigation of Associated Milk Producers, Inc., 566 F.2d 1293, 1297 (5th Cir.), cert. denied sub nom., Associated Milk Producers, Inc. v. United States, 437 U.S. 905, 98 S.Ct. 3092, 57 L.Ed.2d 1135 (1978). The general test for a final decision is one "that 'ends the litigation on the merits and leaves nothing for the court to do but execute the judgment.' " Coopers & Lybrand v. Livesay, 437 U.S. 463, 467, 98 S.Ct. 2454, 2457, 57 L.Ed.2d 351 (1978), quoting Catlin v. United States, 324 U.S. 229, 233, 65 S.Ct. 631, 633, 89 L.Ed. 911 (1945). 6 "This finality rule is designed to avoid piecemeal trial and appellate litigation and the delays and costs of multiple appeals upon both parties and courts, as well as to provide a clear test so that needless precautionary appeals need not be taken lest substantive rights be lost." Newpark Shipbuilding & Repair, Inc. v. Roundtree, 723 F.2d 399, 401 (5th Cir.1984).

Despite the apparent clarity of the general test, however, finality in the context of appealability has proved to be an elusive concept. It is an "abstruse and infinitely uncertain term," Will v. United States, 389 U.S. 90, 108, 88 S.Ct. 269, 280,...

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