Cadawas v. Skibsaksjeselskapet Storli, Bergin

• Decision Date: 28 December 1993
• Docket Number: 93-C-692,Nos. 93-CA-663,s. 93-CA-663
• Citation: 630 So.2d 289
• Parties: Primo F. CADAWAS, III v. SKIBSAKSJESELSKAPET STORLI, BERGIN v. NORCLEAN INDUSTRIER, S.A.
• Court: Court of Appeal of Louisiana — District of US

Page 289

630 So.2d 289

Primo F. CADAWAS, III v. SKIBSAKSJESELSKAPET STORLI, BERGIN v. NORCLEAN INDUSTRIER, S.A.

Nos. 93-CA-663, 93-C-692.

Court of Appeal of Louisiana Fifth Circuit.

Dec. 28, 1993.

Richard J. Dodson, Baton Rouge, Gordon Hackmen, Boutte, for plaintiff Primo F. Cadawas, III.

Charles F. Lozes, Terriberry, Carroll & Yancey, New Orleans, for defendant Skibsaksjeselskapet Storli, Berlin.

G. Alex Weller, Francis J. Barry, Jr., Deutsch, Kerrigan & Stiles, New Orleans, for defendant Norclean Industrier, S.A.

Before DUFRESNE, WICKER and GOTHARD, JJ.

DUFRESNE, Judge.

This is a maritime personal injury case filed by plaintiff Primo F. Cadawas, III, a Philippine citizen, in the 29th Judicial District Court. Plaintiff alleges that he sustained injuries on March 21, 1991, while serving as a crew member of the M/V BOW SEA. He was injured in a shipboard explosion which occurred off the East Coast of the United States while plaintiff was cleaning a cargo tank on the BOW SEA. Plaintiff was originally flown to Baltimore for treatment and then transferred to a hospital in Pennsylvania. Alleging it was the owner of the BOW SEA, Skids A/S Storli, a Norwegian corporation, instituted a Limitation of Liability proceeding in federal court in Pennsylvania.

Plaintiff's suit in the 29th JDC alleged both maritime and state law claims against defendant, Skids A/S Storli. The petition asserts a Jones Act claim, a General Maritime Law unseaworthiness claim, and a state negligence claim against the defendant, and recites that the action is filed in state court under the Savings to Suitors Clause 28 U.S.C. § 1333. Jurisdiction over defendant Skids A/S Storli was based on the seizure of the M/V BOW PRINCESS, also owned by Storli, while she was in St. Charles Parish for an onload/offload. That seizure was effected by a state writ of attachment. The vessel was released on stipulation of the parties after Storli agreed to submit to the jurisdiction of the 29th JDC.

During the pre-trial pleading period, Storli filed a third-party demand asserting a products liability claim against Norclean as the manufacturer of the cleaning equipment which allegedly caused the explosion aboard the BOW SEA. Plaintiff followed with a supplemental petition naming Norclean as a direct defendant. In response to the third-party demand and the supplemental petition, Norclean filed the following thirteen exceptions:

Declinatory Exceptions

--Insufficient service of process

--Lack of personal jurisdiction over Norclean

--Lack of subject matter jurisdiction

--Lis Pendens

--Improper venue

--Forum non conveniens

--Lack of jurisdiction over Norclean due to the dissolution of the attachment forming the original basis of jurisdiction in the case.

Dilatory Exceptions

--Improper cumulation/improper joinder

--Non-joinder of a necessary party

--Vague and ambiguous claim

Peremptory Exceptions

--No cause of action/no right of action

--Prescription

--Non-joinder of an indispensable party

The trial court heard Norclean's exceptions on April 30, 1993 and took the matter under advisement. On May 12, 1993, the court rendered a written judgment on the exceptions. That judgment, from which the present appeal is taken, provides that Norclean's exceptions of jurisdiction, service of process, venue, forum non conveniens, and improper cumulation and joinder are sustained. However, the judgment further finds that Norclean made a "general appearance" by engaging "in direct and purposeful activity within the state such that maintenance of the suit herein would not offend basic principles of due process." The judgment thus concludes that the trial court's jurisdiction over Norclean was proper. Finally, the judgment denies Norclean's exception of lack of subject matter jurisdiction.

Because of the apparent conflicting provisions of the court's judgment, Cadawas and Norclean requested clarification which was denied, as well as Cadawas' motion for rehearing and new trial. Norclean's motion for a judgment of dismissal without prejudice was also denied.

Cadawas timely filed a suspensive appeal (referred to as a "protective appeal") and Norclean filed an application for supervisory writs. Both proceedings have been consolidated here and present the same issues for our review.

The following facts are undisputed and appear in the record. Cadawas is a Philippine citizen who, prior to January 1993, had never resided in Louisiana. Since January 1993, Cadawas has been hospitalized in Baton Rouge, Louisiana for rehabilitation. Storli is a Norwegian Corporation with principal offices in Bergen, Norway. It owns and operates several chemical tank ships, including the M/V BOW SEA, on which Cadawas was serving as a bosun at the time of his accident. This accident occurred in the Atlantic Ocean while the M/V BOW SEA was en route on a voyage from Philadelphia, PA. to Wilmington, DE.

To obtain jurisdiction over Storli, Cadawas was able to "seize" another vessel, M/V BOW Princess, owned by Storli, while she was in commerce in the Mississippi River in St. Charles Parish. A lawsuit was filed in the 29th Judicial District Court alleging recovery under the Jones act, general maritime law of unseaworthiness and State negligence all pursuant to the Savings to Suitors Clause. Storli submitted to jurisdiction and venue as part of a settlement with Cadawas to release the M/V Bow Princess.

Norclean is a company organized under the laws of the Kingdom of Norway, manufacturing a vessel ejectorcleaner at its facility in Sandefjord, Norway. Norclean does not have nor did it ever have any office, property or employees in Louisiana. Norclean also alleges that it never had any shareholders, directors, managers, subsidiary, or any affiliated corporation in Louisiana.

Norclean contends that it never advertised in Louisiana nor has it targeted Louisiana for sales of its products. Norclean alleges that it has only one distributor in the United States, Power Products & Service Co., Inc., a Virginia corporation to which all of its sales in the United States are made.

Cadawas has requested this court to stay this appeal and Norclean's application for supervisory writs and remand this case to the State Court with instructions that the court clarify its judgment. Notwithstanding this request, Cadawas, argues that Norclean has sufficient jurisdictional contacts with Louisiana that we should legally sustain jurisdiction over Norclean, as its contacts satisfies the United States Fourteenth Amendment of due process.

Cadawas, alternatively contends that Norclean made a "general appearance", thereby waiving its jurisdictional exception, in the following respects by filing a Motion to Continue a hearing on its exceptions; by filing a "request for notice" prior to the exceptions hearing and engaging in pre-trial...