Nicol v. Gulf Fleet Supply Vessels, Inc.

• Decision Date: 09 October 1984
• Docket Number: No. 83-3264,83-3264
• Parties: David NICOL, Plaintiff-Appellant, v. GULF FLEET SUPPLY VESSELS, INC., in personam, et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 289

743 F.2d 289

1985 A.M.C. 2669

David NICOL, Plaintiff-Appellant, v. GULF FLEET SUPPLY VESSELS, INC., in personam, et al Defendants-Appellees.

No. 83-3264.

United States Court of Appeals Fifth Circuit.

Oct. 9, 1984.

Dale W. Poindexter, New Orleans, La., for plaintiff-appellant.

Lemle, Kelleher, Kohlmeyer & Matthews, Edward F. Kohnke, IV, James H. Brown, Jr., Miles P. Clements, New Orleans, La., for defendants-appellees.

Appeal from the United States District Court for the Eastern District of Louisiana.

Before BROWN, GEE, and RUBIN, Circuit Judges.

GEE, Circuit Judge:

"As a moth is drawn to the light, so is a litigant drawn to the United States." Smith Kline and French Laboratories, Ltd., et al. v. Block [1983] 2 All E.R. 72, 74 (C.A.1982) (Denning, M.R.). Today's litigant is David Nicol, a Scottish deep-sea diver, who was drawn to the United States District Court for the Eastern District of Louisiana seeking to recover for personal injuries he suffered off the coast of Abu Dhabi while working aboard an American tugboat for his Liberian employer. When considering two Gulf Fleet pre-trial motions filed in 1982, one to dismiss and the other for partial summary judgment, the district court decided that the laws of the United States do not govern Nicol's various claims brought under the Jones Act and general maritime law. Because he found that foreign law applies to this case, the district judge dismissed the action for failure to state a claim upon which relief can be granted. From there he proceeded to dismiss for mootness another Gulf Fleet motion for summary judgment filed in 1981 which he thought was being reurged on the ground of forum non conveniens. We reverse and remand for further consideration by the district court of issues that our opinion will indicate.

I. Nicol's Injury.

David Nicol, a domiciliary of the environs of Edinburgh in Scotland, was injured approximately 45 miles off the coast of Abu Dhabi ¹ in late 1979 while aboard the M/V GULF QUEEN II, a tugboat flying the American flag and owned by Gulf Fleet Western, Inc., a Delaware corporation. ² Nicol was employed as a diver by CCC Underwater Engineering, Ltd., a Liberian corporation. He and his fellow divers lived and worked off the lay barge GERALDINE, a vessel believed to be owned by the National Petroleum Company of Abu Dhabi (N.P.C.C.) and used to lay pipelines in the Zakum Oil Field off the coast of Abu Dhabi. The M/V GULF QUEEN II frequently assisted the lay barge GERALDINE in replacing pendant wires. ³ Nicol temporarily boarded the M/V GULF QUEEN II to help replace a pendant wire, an operation which required the assistance of the divers from the lay barge GERALDINE. Nicol was injured when a piece of equipment that was welded to the stern of the M/V GULF QUEEN II broke loose, striking him and knocking him into the sea. His physician's deposition testimony indicates that he lost about 30 percent of the use of his right arm, wrist, and hand. The evidence is uncontroverted that Nicol can never again work as a diver.

No one disputes that an American company, Gulf Fleet Western, owned the M/V GULF QUEEN II when the accident happened. The charter arrangements were a little more complicated. The record is not entirely consistent on the details, but there is evidence to indicate that Gulf Fleet Middle East, Inc., ⁴ a Panamanian corporation, bareboat-chartered the tug from Gulf Fleet Western. Gulf Fleet Abu Dhabi, a joint venture between Gulf Fleet Middle East and local Arab interests organized under the laws of Abu Dhabi, then bareboat-chartered the vessel from Gulf Fleet Middle East. Finally, Gulf Fleet Middle East time-chartered the M/V GULF QUEEN II to N.P.C.C. These charters were in effect when Nicol was injured.

II. The Light is Extinguished.

Nicol filed suit in late 1980. About a year later, after extensive discovery, the defendants filed a motion to dismiss for lack of subject matter jurisdiction or alternatively, to dismiss based on the doctrine of forum non conveniens. The motion was summarily denied in December of 1981 without written reasons. The case had been set for trial in mid-December of that year, but the matter was continued on the court's own motion. The trial was rescheduled to begin in the spring of 1982, but was again continued, this time on the defendants' motion. The defendants filed two more motions in December of 1982. The first was entitled "Motion to Dismiss or, Alternatively, for Summary Judgment" and the defendants' reasons for bringing the motion were stated in a legal memorandum accompanying their motion. In the memorandum the defendants reurged their arguments concerning lack of subject matter jurisdiction because foreign law should apply to Nicol's case, but a discussion of forum non conveniens is nowhere to be found. ⁵ The second motion requested partial summary judgment, contending in an accompanying memorandum that Nicol's claims do not fall under the Jones Act and that he is not entitled to invoke the doctrine of unseaworthiness. Again, forum non conveniens is nowhere mentioned. Three days before trial was to begin in January of 1983, the case was continued to the end of May on the court's motion. Then, in April, the district judge ordered that the first of the defendants' motions filed the previous December be treated as a motion for summary judgment and granted it. He did so presumably because he decided that foreign law applies and, the plaintiff having made no claim under foreign law, the complaint should be dismissed for failure to state a claim under Rule 12(b)(6) of the Federal Rules of Civil Procedure. ⁶ Then the judge stated in his order, "IT IS FURTHER ORDERED that the defendants' Motion for Summary Judgment on the grounds of forum non conveniens is DENIED AS MOOT." The problem with this adjudication of mootness is that the only motion based on forum non conveniens was made and denied back in 1981. ⁷ The judge must have assumed that the defendants were reurging their 1981 motions in their entirety, even though they said they were not, and despite their failure to mention forum non conveniens in their December 1982 filings. As for the defendants' motion for partial summary judgment based on the Jones Act and unseaworthiness, it appears from the record that it was never ruled upon. In any event, it was clear to Nicol that the United States court had sent him elsewhere, and he appeals to us.

III. Jurisdiction: An Incomplete Analysis.

Our most recent pronouncement regarding the standard of review for choice of law in Jones Act/general maritime law cases is contained in Koke v. Phillips Petroleum Co., 730 F.2d 211, 218 (5th Cir.1984):

Before dismissing a case for forum non conveniens, a court must first determine whether American or foreign law governs that claim. Bailey v. Dolphin International, Inc., 697 F.2d 1268, 1274 (5th Cir.1983). This Court has held that, if American law applies, a federal court should retain jurisdiction. Fisher v. Agios Nicolaos V, 628 F.2d 308, 315 (5th Cir.1980), cert. denied sub nom., Valmas Brothers Shipping, S.A. v. Fisher, 454 U.S. 816, 102 S.Ct. 92, 70 L.Ed.2d 84 (1981). But see Piper Aircraft Co. v. Reyno, 454 U.S. 235, 260, 102 S.Ct. 252, 268, 70 L.Ed.2d 419 (1981). If foreign law applies, however, the court may dismiss if there is a more convenient forum available. De Oliveira v. Delta Marine Drilling Co., 707 F.2d 843, 845 (5th Cir.1983). While the choice of law is subject to our de novo review, the court's dismissal for forum non conveniens will be disturbed "only if its action constitutes a clear abuse of discretion." Bailey, 697 F.2d at 1274.

Before the district judge, the parties in Nicol's case appear to have confused subject matter jurisdiction with forum non conveniens and thus to have led him into error. The district judge's order is couched strictly in terms of choice of law. In Romero v. International Terminal Operating Co., 358 U.S. 354, 359, 79 S.Ct. 468, 473, 3 L.Ed.2d 368, 374-75 (1959), Justice Frankfurter recognized that the question whether subject matter jurisdiction exists is often confused with whether the complaint states a cause of action. Nicol argues that the Jones Act affords him a right of recovery for the injuries he suffered in the course of his employment. ⁸ For Jones Act purposes, Nicol alleges that his "employer" ⁹ was any one or all of the Gulf Fleet companies named as the defendants.

Such assertion alone is sufficient to empower the District Court to assume jurisdiction over the case and determine whether, in fact, the Act does provide the claimed rights. "A cause of action under our law was asserted here, and the court had power to determine whether it was or was not well founded in law and in fact." Lauritzen v. Larsen, 345 U.S. 571, 575, 73 S.Ct. 921, 924, 97 L.Ed. 1254, 1262.

Romero, 358 U.S. at 359, 79 S.Ct. at 473, 3 L.Ed.2d at 375. The district judge in Nicol's case did not address whether, for example, Nicol is a Jones Act seaman or whether the Gulf Fleet companies might fall under the Jones Act as "employers" given the facts of this case. Thus, he did not rule on whether his court has the power to determine Nicol's claims under the Jones Act, nor did he determine whether Nicol states a valid cause of action under the Act. He determined only that foreign law applies, the first prong in a forum non conveniens assessment. Similarly, the district court never discussed its jurisdiction over this case in terms of American general maritime law, nor was the validity of Nicol's cause of action questioned under general maritime law. ¹⁰ It is clear from Romero that choice of law in Jones Act/general maritime law cases is relevant only to the doctrine of forum non conveniens and has nothing to do with subject matter jurisdiction. Thus, the district judge had taken only the first step in a forum non conveniens analysis when he dismissed Nicol's case. Consequently he erred, perhaps in finding that...