Camejo v. Ocean Drilling & Exploration
| Decision Date | 07 March 1988 |
| Docket Number | No. 86-6025,86-6025 |
| Citation | 838 F.2d 1374 |
| Parties | Shirlei Kirschner CAMEJO, et al., Plaintiffs-Appellants, v. OCEAN DRILLING & EXPLORATION, et al., Defendants-Appellees. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Dennis C. Reich, Reich & Binstock, Houston, Tex., for plaintiffs-appellants.
Marc A. Sheiness, Hirsch, Glover, Robinson & Sheiness, Houston, Tex., for U.S. Divers.
Ted C. Litton, Royston & Rayzor, Houston, Tex., for Ocean Drill, Brasdill, Odeco & Norvald.
Carol H. Sloss, Houston, Tex., for Diving Systems.
Appeal from the United States District Court for the Southern District of Texas.
Before GOLDBERG, JOHNSON and WILLIAMS, Circuit Judges.
We review a district court decision dismissing claims resulting from the death of a foreign diver in an oil and gas related accident in foreign territorial waters. The district court based its decision to dismiss on Sec. 688(b) of the Jones Act and on the doctrine of forum non conveniens. The district court also refused to remand the case to the Texas state district court where Plaintiff originally filed it. Finding that the district court's actions were not an abuse of its discretion, we AFFIRM.
On February 22, 1984, Joao Lazaro Camejo ("Joao Camejo") died in a diving accident in Brazilian territorial waters. Joao Camejo, a Brazilian citizen and resident, was employed in Brazil, by a Brazilian entity, defendant Superpesa Transportes Maritimos, Ltd. ("Superpesa"), as a diver in connection with mineral exploration. At the time of his death, Joao Camejo was diving from a Panamanian flagged rig, the ZEPHYR II, drilling for the Brazilian national oil company, Petroleo Brasileiro, S.A. ("Petrobras"). 1
The plaintiff is Joao Camejo's widow, Shirlei Kirschner Camejo ("Shirlei Camejo"). Shirlei Camejo filed suit (1) individually, (2) as representative of the estate of Joao Camejo, and (3) as representative of their minor children. Shirlei Camejo and the minor children are Brazilian citizens and residents.
Shirlei Camejo originally named eight defendants. Only three remain. The federal district court dismissed defendant Petrobras, the Brazilian national oil company, pursuant to an agreement between Petrobras and Shirlei Camejo. Just before oral argument in this court, pursuant to an agreement between Shirlei Camejo and four of the defendants, this court dismissed those four defendants, Ocean Drilling & Exploration Company, Brasdril-Sociedade de Perfuracoes Ltda., ODECO International, Inc., and Norvald Steve Lekva. 2
Two of the three remaining defendants are U.S. Divers Corp. ("U.S. Divers"), and Diving Systems International, Inc. ("Diving Systems"). U.S. Divers and Diving Systems, both United States corporations, allegedly designed and manufactured the diving helmet that Joao Camejo wore when he died. Diving Systems and U.S. Divers have no contact with Texas that has any relation to this suit; their only contact with Texas is that they have sold products to companies doing business in Texas. The third remaining defendant is Superpesa, Joao Camejo's employer. Superpesa never appeared in the district court or in this court.
Shirlei Camejo based her claims on (1) the general maritime law of the United States, (2) the Jones Act, 46 U.S.C. Sec. 688, and (3) Texas wrongful death and survival statutes. Shirlei Camejo originally filed suit in a state district court in Houston, Texas. Petrobras removed the suit to a federal district court in Houston, Texas on the basis of 28 U.S.C. Sec. 1441(d) and the Foreign Sovereign Immunities Act of 1976. 3
After the district court dismissed Petrobras, Shirlei Camejo moved for remand to the state district court in Houston, Texas. The remaining defendants filed a motion to dismiss Shirlei Camejo's Jones Act claims under 46 U.S.C. Sec. 688(b), and to dismiss her remaining claims on the grounds of forum non conveniens. The district court, denying Shirlei Camejo's motion for remand, granted defendants' motions for dismissal subject to the conditions listed in the margin. 4
In 1982 Congress amended the Jones Act by renumbering the existing Sec. 688 language Sec. 688(a) and adding the following language as Sec. 688(b):
(1) No action may be maintained under [the Jones Act] or under any other maritime law of the United States for maintenance and cure or for damages for the injury or death of a person who was not a citizen or permanent resident alien of the United States at the time of the incident giving rise to the action if the incident occurred--
(A) while that person was in the employ of an enterprise engaged in the exploration, development, or production of off-shore mineral or energy resources--including but not limited to drilling, mapping, surveying, diving, pipe-laying, maintaining, repairing, constructing, or transporting supplies, equipment or personnel, but not including transporting those resources by a vessel constructed or adapted primarily to carry oil in bulk in the cargo spaces; and
(B) in the territorial waters or waters overlaying the continental shelf of a nation other than the United States, its territories, or possessions. As used in this paragraph, the term "continental shelf" has the meaning stated in article I of the 1958 Convention on the Continental Shelf.
(2) The provisions of paragraph (1) of this subsection shall not be applicable if the person bringing the action establishes that no remedy was available to that person--
(A) under the laws of the nation asserting jurisdiction over the area in which the incident occurred; or
(B) under the laws of the nation in which, at the time of the incident, the person for whose injury or death a remedy is sought maintained citizenship or residency. 5
Section 688(b) denies a Jones Act remedy and any other remedies under general maritime law to foreign seamen in the offshore drilling industry when they are injured in another country's territorial waters, unless neither the country where the injury occurred nor the seaman's home country provide any remedy. Because Congress also provided that Sec. 688(b) does "not apply to any action arising out of an incident that occurred before" December 29, 1982, 6 few courts have applied or interpreted the new provision. Joao Camejo's death, however, occurred after December 29, 1982 and Sec. 688(b) applies to this case. The district court recognized the applicability of Sec. 688(b), but misinterpreted its import. The district court's ruled that:
As a preliminary matter, the Court would note that Plaintiffs' claims for relief under the Jones Act, 46 U.S.C. Secs. 688, et seq., must be dismissed. The incident which gives rise to this cause of action occurred after 1982, when Congress amended the Jones Act to exclude from its coverage certain aliens.
....
The pleadings make clear that Plaintiff's decedent was an alien employed by an enterprise engaged in the production of off-shore energy resources in territorial waters off of Brazil. Because Plaintiff has not shown that no remedy was available to her so as to fit this case within one of the exceptions to the Jones Act exclusion provision, she has failed to state a claim for relief under the Jones Act, and that portion of the case must be dismissed.
District Court Order, November 7, 1986, at 2. On appeal, neither party argues that the district court erred in dismissing Shirlei Camejo's Jones Act claims and we agree that this action was correct. The district court, however, failed to realize the full import of Sec. 688(b). The section does not just deny Shirlei Camejo, and similarly situated plaintiffs, relief under the Jones Act; the section also denies relief under "any other maritime law of the United States for maintenance and cure or for damages for ... injury or death." 46 U.S.C. Sec. 688(b). As a result Sec. 688(b) also denies Shirlei Camejo relief under the general maritime law of the United States.
Shirlei Camejo's counsel assert in their brief that the District Court erred because, after dismissing Petrobras, the district court refused to remand the case to the state district court where Shirlei Camejo originally brought it. This court, however, recently said in a similar case that "even if no federal admiralty claim remained in the case, the district court still retained pendent jurisdiction over the state claims" and could therefore dismiss the state claims under the doctrine of forum non conveniens. 7 Because the decision to retain or remand remaining pendent claims after the dismissal of the foreign sovereign who removed the case is within the discretion of the district court 8 we can only reverse the district court's decision to retain jurisdiction after the dismissal of the removing defendant, Petrobras, if that decision was a clear abuse of the district court's discretion. It was not.
1. The old law. For many years, in many admiralty cases, this court held that, before addressing the issue of forum non conveniens, the district court should decide whether American or foreign law applied. 9 To determine the choice of law question the court used the eight factors set out by the Supreme Court in Lauritzen v. Larsen, 345 U.S. 571, 73 S.Ct. 921, 97 L.Ed. 1254 (1953), and Hellenic Lines Ltd. v. Rhoditis, 398 U.S. 306, 90 S.Ct. 1731, 26 L.Ed.2d 252 (1970). 10 This court also held that if American law applied the district court should generally retain jurisdiction and proceed with the case. 11 On the other hand, this court held that, if the district court determined that foreign law applied then the district court should proceed to an analysis of the forum non conveniens factors set forth in Gulf Oil Corporation v. Gilbert, 330 U.S. 501, 67 S.Ct. 839, 91 L.Ed. 1055 (1947). 12
In 1981, in Piper Aircraft Co. v. Reyno, 454 U.S. 235, 102 S.Ct. 252, 70 L.Ed.2d 419 (1981), a products...
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