Ali v. Offshore Co.

• Decision Date: 28 February 1985
• Docket Number: No. 83-3621,83-3621
• Citation: 753 F.2d 1327
• Parties: Maureen ALI, personal representative of the Estate of Amin Ali, Deceased, Plaintiff-Appellant, v. The OFFSHORE COMPANY, et al., Defendants-Appellees. Theodora FRASER, personal representative of the Estate of Agustus Daniel Fraser, Deceased, Plaintiff-Appellant, v. The OFFSHORE COMPANY, et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 1327

753 F.2d 1327

1985 A.M.C. 2682

Maureen ALI, personal representative of the Estate of Amin

Ali, Deceased, Plaintiff-Appellant, v. The OFFSHORE COMPANY, et al., Defendants-Appellees.

Theodora FRASER, personal representative of the Estate of Agustus Daniel Fraser, Deceased, Plaintiff-Appellant, v. The OFFSHORE COMPANY, et al., Defendants-Appellees.

No. 83-3621.

United States Court of Appeals,

Fifth Circuit.

Feb. 28, 1985.

Frank A. Silvestri, New Orleans, La., for plaintiff-appellant.

Michael M. Christovich, W.K. Christovich, New Orleans, La., for The Offshore Co.

Joel L. Borrello, New Orleans, La., for Amoco.

Ralph E. Smith, New Orleans, La., for Smatco and TBW.

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

Before GEE, REAVLEY and DAVIS, Circuit Judges.

GEE, Circuit Judge:

The plaintiffs in these actions, widows of citizens of Trinidad killed when an hydraulic winch malfunctioned aboard a mobile oil drilling vessel operating in national waters of Trinidad, brought actions for wrongful death against the ship's owners and operators and against the designers and manufacturers of the winch. The district court dismissed them. Its stated ground was lack of subject matter jurisdiction, although it conditioned dismissal upon the defendants' consenting to appear in a foreign forum. Because we conclude that the dismissal for lack of subject matter jurisdiction was improper and that the district court did not complete the two-part forum non conveniens analysis outlined by this court in Nicol v. Gulf Fleet Supply Vessels, Inc., 743 F.2d 289 (5th Cir.1984), we remand for further consideration of the forum non conveniens issue.

I. Facts

The plaintiff's decedents, citizens of Trinidad who were working aboard the drilling ship DISCOVERER 511 in the national waters of Trinidad about eleven miles from Galeota Point, were killed when the torque arm of an hydraulic winch failed in November 1979. The plaintiffs asserted claims under the Jones Act ¹ and other applicable death statutes and the general maritime law against the owner of the vessel, Amoshore Drilling Co. (Amoshore), a Liberian corporation; Amoshore's parent corporation, Amoco Drilling Services, Inc. (Amoco Drilling), a Delaware corporation with its principal place of business in Illinois; Offshore International, S.A. and the Offshore Co., affiliates of Amoshore and Amoco; ² and Smatco, Inc. (Smatco) and T.B.W. Industries, Inc. (TBW) the designers and manufacturers of the winch. ³ They also asserted a product liability claim against Smatco and TBW, presumably under the general maritime law, and a strict liability claim against all defendants under a provision of the Louisiana Civil Code that makes the custodian of a thing that causes injury presumptively liable for damages. ⁴

The winch that failed was designed, built, inspected, and installed in the United States. The DISCOVERER 511 was also built there. Between 1976 and 1979 the DISCOVERER 511 operated variously in the waters of Trinidad, Guyana, Spain, Greece, and Egypt and was refitted in the United States once. It reentered Trinidadian waters in November 1979, shortly before the plaintiffs' decedents were killed. When the parties briefed this appeal, the ship was in Egyptian waters.

At the time of the fatal incident, Amoshore's Trinidad office directed the ship's daily operations and maintained records, and Trinidadian drilling regulations applied to the work. Some eyewitnesses appear to have been Trinidadians who worked for the labor contractor who also employed the plaintiffs' decedents. The record does not disclose whether any eyewitnesses may be assigned to the ship permanently and thus located wherever the ship may be found. Witnesses to the design, manufacture, inspection, and installation of the allegedly defective winch are located in Louisiana.

II. The Applicable Law

In Nicol v. Gulf Fleet Supply Vessels, Inc., this Court set forth the analysis to be applied to a forum non conveniens motion in the context of an action by a maritime worker against the owner or operator of his vessel. 743 F.2d 289 (5th Cir.1984). First, the court determines whether United States law governs by applying the eight factor test developed in Lauritzen v. Larsen, 345 U.S. 571, 73 S.Ct. 921, 97 L.Ed. 1253 (1953), and Hellenic Lines Ltd. v. Rhoditis, 398 U.S. 306, 90 S.Ct. 1731, 26 L.Ed.2d 252 (1970). ⁵ Those factors are (1) place of wrongful act, (2) law of the flag, (3) allegiance or domicile of injured party, (4) allegiance of the defendant shipowners, (5) place of the contract, (6) inaccessibility of the foreign forum, (7) law of the forum, and (8) shipowner's base of operations. The weight to be accorded these factors varies according to the context. Koke v. Phillips Petroleum Co., 730 F.2d 211, 219-220 (5th Cir.1984). In Chiazor v. Transworld Drilling Co., we held that factors such as the place of the wrong and the allegiance or domicile of the plaintiff take on a greater importance in the context of a nontraditional maritime vessel like a submersible drilling rig stationed offshore. 648 F.2d 1015, 1019 (5th Cir.1981), cert. denied, 455 U.S. 1019, 102 S.Ct. 1714, 72 L.Ed.2d 136 (1982). On appeal, we review the choice of law issue de novo.

If the court determines that United States law applies, it ordinarily keeps the case. De Oliveira v. Delta Marine Drilling Co., 707 F.2d 843, 845 (5th Cir.1983). But see Piper Aircraft Co. v. Reyno, 454 U.S. 235, 102 S.Ct. 252, 70 L.Ed.2d 419 (1981). If the court determines that United States law does not apply, the court balances the public and private convenience factors set forth in Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 67 S.Ct. 839, 91 L.Ed. 1055 (1947), to determine whether it should dismiss the case.

Important considerations are the relative ease of access to sources of proof; availability of compulsory process for attendance of unwilling, and the cost of obtaining attendance of willing, witnesses; possibility of view of premises, if view would be appropriate to the action; and all other practical problems that make trial of a case easy, expeditious and inexpensive. There may also be questions as to the enforcibility of a judgment if one is obtained. The court will weigh relative advantages and obstacles to fair trial.

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Administrative difficulties follow courts when litigation is piled up in congested centers instead of being handled at its origin. Jury duty is a burden that ought not to be imposed upon the people of a community which has no relation to the litigation. In cases which touch the affairs of many persons, there is reason for holding the trial in their view and reach rather than in remote parts of the country where they can learn of it by report only. There is a local interest in having localized controversies decided at home. There is an appropriateness, too, in having the trial of a diversity case in a forum that is at home with the state law that must govern the case, rather than having a court in some other forum untangle problems in conflict of laws, and in law foreign to itself.

Gulf Oil, 330 U.S. at 508-509, 67 S.Ct. at 843.

III. Choice of Law Analysis as the First Prong of the Forum Non Conveniens Test

Like the district court in Nicol, the district court here performed the choice of law analysis that forms the first prong of a forum non conveniens analysis and, concluding that United States law did not apply, dismissed the case for lack of subject matter jurisdiction. In so doing, the district court erred. The district court did not address whether the plaintiffs' decedents were Jones Act seamen or whether the named defendants were Jones Act employers. Those matters go to the question of subject matter jurisdiction. As we noted in Nicol, Romero v. International Terminal Operating Co., 358 U.S. 354, 359, 79 S.Ct. 468, 473, 3 L.Ed.2d 368 (1959), makes clear 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." Nicol, at 294; see also Sosa v. M/V Lago Izabal, 736 F.2d 1028, 1031 (5th Cir.1984). The district court therefore erred when it dismissed the case without proceeding to balance the Gulf Oil factors as they apply to the facts of this case, and we must remand for consideration of the forum non conveniens issue.

On remand, the district court need not reconsider its choice of law analysis as to the Jones Act and maritime death statute claims against the owners and operators of the vessel. We agree with the district court that the method of weighing the Lauritzen-Rhoditis factors adopted in the Chiazor line of cases governs this case. See Koke v. Phillips Petroleum Co., 730 F.2d 211 (5th Cir.1984); De Oliveira v. Delta Marine Drilling Co., 707 F.2d 843 (5th Cir.1983); Bailey v. Dolphin International, Inc., 697 F.2d 1268 (5th Cir.1983); Vaz Borralho v. Keydril Co., 696 F.2d 379 (5th Cir.1983); Chiazor v. Transworld Drilling Co., 648 F.2d 1015 (5th Cir.1981), cert. denied, 455 U.S. 1019, 102 S.Ct. 1714, 72 L.Ed.2d 136 (1982); Zekic v. Reading & Bates Drilling Co., 536 F.Supp. 23 (E.D.La.1981), vacated in part on other grounds, 680 F.2d 1107 (5th Cir.1982) (per curiam). Although the DISCOVERER 511 is considerably more mobile than were the fixed rig vessels in the Chiazor line of cases, its involvement in the offshore drilling industry in the territorial waters of another sovereign, Trinidad, lends greater weight to the place of the wrong and the domicile of the plaintiff in the choice of law analysis. ⁶ In short, in the circumstances of this case Trinidad's interest in regulating the conduct of its offshore oil industry is greater than the United States' interest in regulating the conduct of domestic corporations drilling for oil in the territorial waters of another sovereign. ⁷ To the extent that the plaintiffs' complaint may be read to state a cause of action...