Craig v. Atlantic Richfield Co.

• Decision Date: 23 March 1994
• Docket Number: No. 92-16962,92-16962
• Citation: 19 F.3d 472
• Parties: Ten Fong CRAIG, individually and as Administratrix of the Estate of William Henry Craig deceased, Plaintiff-Appellant, v. ATLANTIC RICHFIELD CO., et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 472

19 F.3d 472

1994 A.M.C. 1354

Ten Fong CRAIG, individually and as Administratrix of the Estate of William Henry Craig deceased, Plaintiff-Appellant, v. ATLANTIC RICHFIELD CO., et al., Defendants-Appellees.

No. 92-16962.

United States Court of Appeals Ninth Circuit.

Argued and Submitted Feb. 11, 1994.

Decided March 23, 1994.

Benton Musslewhite, Houston, TX, for plaintiff-appellant.

Ernest N. Reddick, Derby, Cook, Quinby & Tweedt, San Francisco, CA, and James M. Derr, Belcher, Henzie & Biegenzahn, Los Angeles, CA, for defendants-appellees.

Appeal from the United States District Court for the Northern District of California.

Before: HUG, FARRIS and O'SCANNLAIN, Circuit Judges.

FARRIS, Circuit Judge.

Plaintiff Ten Fong Craig (widow of William H. Craig), individually and as administratrix of the estate of William H. Craig, appeals the district court's judgment in favor of defendants Atlantic Richfield Co., Brinkerhoff Maritime Drilling Corporation and Crowley Maritime Corporation. The district court held that (1) plaintiff was not entitled to a jury trial, (2) the Sinkler/ Hopson doctrine did not apply to defendants Brinkerhoff and Crowley, (3) defendants Brinkerhoff and Crowley were not negligent, and (4) an airplane is not an "appurtenance" of a vessel.

The district court had jurisdiction pursuant to the Jones Act, 46 U.S.C.App. Sec. 688. We have jurisdiction pursuant to 28 U.S.C. Sec. 1291.

I. BACKGROUND

William Craig was killed in an airplane crash in Indonesia while being transported to work in a DC-3 airplane operated by Airfast, an aircraft charter company. At the time of the crash, Craig was an employee of Brinkerhoff, the wholly owned subsidiary of Crowley.

William Craig worked aboard the offshore drilling barge Brinkerhoff-I, a vessel operated by Brinkerhoff and Crowley. Brinkerhoff had entered into a drilling contract with Atlantic Richfield Indonesia Inc. (not a defendant in this case), a wholly owned subsidiary of ARCO. In February, 1981, Atlantic Richfield Indonesia directed Brinkerhoff to move the barge to a lease concession operated by Hudbay Oil. Atlantic Richfield Indonesia and Hudbay executed an agreement providing that Brinkerhoff would perform drilling operations for Hudbay. Pursuant to this agreement, the Brinkerhoff-I was moved from the Java Sea to the Malaca Straits. Hudbay entered into an Aircraft Charter Agreement with Airfast to transport the employees of Brinkerhoff from Singapore to Pekanbaru, Indonesia. From Pekanbaru, Brinkerhoff employees were flown via helicopter to the Brinkerhoff-I.

Five weekly charter flights took place between Singapore and Pekanbaru beginning the last week of March 1981 pursuant to the charter agreement between Airfast and Hudbay. The first two flights left at 6:00 AM. One of the two encountered severe fog while trying to land and was forced to return to Singapore. Complaint was made by William Craig to Stephen Chia (in charge of crew changes and crew transportation for Brinkerhoff) and Richard Alex (general drilling superintendent for Brinkerhoff) that the weather conditions early in the morning were unfavorable for flying. Alex testified that he called Airfast directly and requested that the flights leave at 8:00 AM. The next two flights left at 8:00 AM. The fifth and fateful flight left at 6:00 AM on April 28, 1991, encountered severe fog, and crashed while attempting to land.

Ten Fong Craig brought action against the named defendants and numerous foreign defendants (who have since been dismissed) in September, 1983. Shortly after the complaint was filed, defendant ARCO demanded a jury trial. Plaintiff's counsel states in an affidavit that he relied on ARCO's jury demand and assumed that the case would be tried before a jury. However, prior to trial, the district court ruled that ARCO did not have the right to demand a jury trial. Over plaintiff's objections, a bench trial was held.

The district court held that ARCO was not a Jones Act employer of William Craig and therefore not liable for his death. Plaintiff does not dispute this holding. The court also held that Brinkerhoff and Crowley were Jones Act employers, but were (1) not liable under the Sinkler/ Hopson doctrine because Airfast was not their "agent" and (2) not directly negligent. The court further held that the DC-3 aircraft could not be considered an "appurtenance" of the vessel and that the doctrine of unseaworthiness was therefore not applicable.

II. The Jury Question

Plaintiff contends that the district court erred by denying her a trial by jury. She raises the following arguments: (1) ARCO had the right to demand a jury trial, and she properly relied on that demand; (2) even if ARCO did not have the right to demand a jury trial, she was entitled to rely on ARCO's demand; (3) the district court abused its discretion under Federal Rule of Civil Procedure 39(b) by denying her a jury trial; (4) she was entitled to rely on the jury demands of parties in related cases; and, (5) defendants were estopped from demanding a non-jury trial.

A. ARCO's Jury Demand

The Federal Rules of Civil Procedure preserve a party's right to demand a jury trial if such right stems from the Seventh Amendment or a federal statute. See Fed.R.Civ.P. 38(a). Plaintiff contends that ARCO had a right to demand a jury trial under the Seventh Amendment and pursuant to the Jones Act, 46 U.S.C.App. Sec. 688, and that she had the right to rely on such demand under Federal Rule 39(a)(1). ¹

1. The Jones Act

The Seventh Amendment preserves a party's right to a jury trial as it existed at common law. See U.S. Const. amend. VII. Since there was no common law right to a jury trial in admiralty cases, the Seventh Amendment does not apply to suits that invoke only a federal court's admiralty jurisdiction. Waring v. Clarke, 46 U.S. (5 How.) 441, 460, 12 L.Ed. 226 (1847).

The Jones Act, however, confers a statutory right to a jury trial. The Act provides that "any seaman who shall suffer personal injury in the course of his employment may, at his election, maintain an action for damages at law, with the right of trial by jury...." 46 U.S.C.App. Sec. 688. Plaintiff could have demanded a jury trial had she made her demand within 10 days of serving her complaint. See Fed.R.Civ.P. 38(b). Since plaintiff made no such demand, we must decide whether the Jones Act confers a similar right on a defendant.

The Fifth Circuit has held that in actions where a federal court's sole basis for jurisdiction is under the Jones Act, only the plaintiff has a right to demand a jury trial. See Rachal v. Ingram Corp., 795 F.2d 1210 (5th Cir.1986); Linton v. Great Lakes Dredge & Dock Co., 964 F.2d 1480, 1489 n. 16 (5th Cir.) (citing Rachal ), cert. denied, --- U.S. ----, 113 S.Ct. 467, 121 L.Ed.2d 375 (1992). We agree. The plain language of the Jones Act gives a plaintiff the option of maintaining an action at law with the accompanying right to a jury trial. The Act makes no mention of a defendant. ²

2. Diversity of Citizenship

Plaintiff also argues that even if ARCO did not have a right to demand a jury trial under the Jones Act, ARCO had a Seventh Amendment right to a jury trial because the district court had diversity jurisdiction over the parties pursuant to 28 U.S.C. Sec. 1332. We have held that where a federal court has an independent basis of jurisdiction over cases involving admiralty claims, such as diversity of citizenship, both the defendant and plaintiff have a right to demand a jury trial under the Seventh Amendment so long as the suit is one that could traditionally have been brought "at common law." See Wilmington Trust v. U.S. Dist. Court, 934 F.2d 1026 (9th Cir.1991) (holding that defendant had right to jury trial in admiralty case where defendant alleged counterclaims for which there were independent bases of jurisdiction), cert. denied, --- U.S. ----, 112 S.Ct. 1578, 118 L.Ed.2d 220 (1992); Owens-Illinois, Inc. v. United States Dist. Court, 698 F.2d 967, 971-72 (9th Cir.1983).

The district court ruled that under 28 U.S.C. Sec. 1332(c)(2), ³ plaintiff is deemed a resident of California by virtue of her husband's residence there. Since ARCO, Brinkerhoff and Crowley have principal places of business in California, the district court ruled that diversity was absent. Even if plaintiff is correct that she should be attributed Singaporean citizenship due to the fact that the case was commenced prior to the 1988 amendment to 28 U.S.C. Sec. 1332(c)(2), ⁴ complete diversity did not exist at the time ARCO made its jury demand. At that stage in the proceedings, the case involved a single foreign plaintiff (assuming plaintiff is considered a citizen of Singapore) and numerous foreign defendants (in addition to U.S. defendants), thereby defeating diversity. See Faysound Ltd. v. United Coconut Chemicals, 878 F.2d 290, 294-95 (9th Cir.1989) (presence of foreign plaintiff and foreign defendants defeats diversity).

ARCO did not have a right to demand a jury trial under the Jones Act or the Seventh Amendment.

B. Reliance on ARCO's Jury Demand

Plaintiff argues that even if ARCO did not have the right to demand a jury trial, she had the right to rely on ARCO's jury demand pursuant to Rule 39(a)(1). We reject the argument.

Rule 39(a)(1) provides that "[w]hen trial by jury has been demanded as provided in Rule 38, the action shall be designated upon the docket as a jury action. The trial of all issues so demanded shall be by jury unless the parties ... consent to trial by the court sitting without a jury." Fed.R.Civ.P. 39(a) (emphasis added). Rule 38(a) only preserves the right to a jury trial "as declared by the Seventh Amendment to the Constitution or as given by a statute of the United States." See Fed.R.Civ.P. 38(a). Since ARCO had neither a constitutional nor a statutory right to demand a jury trial, its jury demand could not have been made "as provided in Rule 38" for purposes of Rule 39. Plaintiff was therefore not...