Hughes v. Foster Wheeler Co.

Decision Date07 March 1997
Docket NumberNo. S-6928,S-6928
Citation932 P.2d 784
PartiesJohn R. HUGHES, Bland L. Castano, Erling O. Tronnes, Floyd King, Harry Divestein, Carsten Hjelle, Eddie T. Overton, Robert L. Reynolds, Robert P. Bergh, Samuel Derikrava, Roque P. Navarro, Zenon J. Pinto, Andrew S. Marshall, Ruben Guerra, Feliciano Salcido, Creighton E. Miller, Administrator of the Estates of Pok Tung Lee, William O. Anderson, Allan F. Berlund, Warren J. Henry, Edward T. Kusman, Peter J. Corvia, Leroy L. Mobley, James I. Payne, Robert Cranston, Malcolm Rogers, Lloyd Borland, Lucius McCall, James M. Goo, Alfred W. Franklin, and Frank W. Barber, Appellants, v. FOSTER WHEELER CO., Crown Cork & Seal Co., Inc., Garlock, Inc., ACandS, Inc., Mobil Oil Corp., Phillips Petroleum Co., Gatke Corp., Pope & Talbot Co., General Electric Co., Fibreboard Corp., Plibrico Co., Tidewater Oil Co., Texaco Inc., John Cranehoudaille, Inc., United States Steel Corp. a/k/a USX Corp., Owens-Illinois, Inc., Anchor Packing Co., Alaska Steamship Co., and the So-Called "CCR Defendants": A.P. Green Refractories Co., Armstrong World Industries, Inc., Certainteed Corp., Flexitallic, Inc., GAF Corp., National Gypsum Co., U.S. Gypsum Co., and Union Carbide Corp., Appellees.
CourtAlaska Supreme Court

Leonard C. Jaques and Robert J. Allen, The Maritime Asbestosis Legal Clinic, A Division of the Jaques Admiralty Law Firm, Detroit, MI, for Appellants.

Jennifer M. Coughlin, Preston, Gates & Ellis, Anchorage, Jean L. Bertrand, Morgenstein & Jubelirer, San Francisco, CA, Roger Holmes, Biss & Holmes, Anchorage, and Thomas M. Peterson and Michael B. Green, Brobeck, Phleger & Harrison, San Francisco, CA, for Appellees.

Before COMPTON, C.J., and RABINOWITZ and FABE, JJ.

OPINION

RABINOWITZ, Justice.

I. INTRODUCTION

Thirty merchant mariners filed complaints against various shipowners and asbestos manufacturers alleging personal injuries and wrongful deaths caused by exposure to asbestos while they served aboard various vessels. The cases were dismissed on grounds of forum non conveniens. This is an appeal from the superior court's award of attorney's fees and costs under Alaska Civil Rule 82 entered in conjunction with its forum non conveniens dismissal.

II. FACTS AND PROCEEDINGS

The attorneys for the thirty merchant mariners filed thirty similar complaints in three different superior courts of the State of Alaska, naming multiple defendants. The suits alleged personal injuries and wrongful deaths caused by exposure to asbestos and other substances while the seamen were in the merchant marine. Appellees (Foster) removed twenty-eight of the thirty cases to federal district court, which remanded the cases to state court. On motion of the mariners, the superior court consolidated all thirty cases for the "purposes of hearing [Foster's] motion to dismiss on personal jurisdiction and forum non conveniens " grounds.

The superior court granted the motion to dismiss on forum non conveniens grounds. 1 The superior court then awarded Foster $134,905.46 in attorney's fees and $106,782.36 in costs, 2 finding Foster the "prevailing party" pursuant to Civil Rule 82. The mariners appeal the superior court's award of attorney's fees and costs. 3

III. DISCUSSION
A. The Superior Court Correctly Applied Civil Rule 82.

The mariners argue that admiralty law does not provide for awards of attorney's fees and costs, and therefore the superior court erroneously awarded costs and attorney's fees to Foster pursuant to Civil Rule 82. 4

1. Since the case was dismissed pursuant to the doctrine of forum non conveniens, any prohibition on the award of attorney's fees pursuant to admiralty law is irrelevant.

These consolidated cases were dismissed pursuant to the doctrine of forum non conveniens. The United States Supreme Court recently held that the doctrine of forum non conveniens is not a part of admiralty law. American Dredging Co. v. Miller, 510 U.S. 443, 114 S.Ct. 981, 127 L.Ed.2d 285 (1994). The court wrote, " [T]he doctrine of forum non conveniens neither originated in admiralty nor has exclusive application there. To the contrary, it is and has long been a doctrine of general application." Id. at 450, 114 S.Ct. at 987.

Even if the mariners are correct in arguing that cases decided pursuant to federal admiralty law cannot support awards of attorney's fees and costs, that argument is inapplicable to a case resolved by a dismissal pursuant to the doctrine of forum non conveniens. Accordingly, we hold that the superior court did not err in finding that attorney's fees and costs could be awarded pursuant to Civil Rule 82. 5

2. Admiralty law does not prohibit the superior court from awarding attorney's fees and costs pursuant to Civil Rule 82.

Even assuming that admiralty law applies to an admiralty case dismissed in the superior court pursuant to a forum non conveniens motion, admiralty law does not prohibit the award of attorney's fees and costs in admiralty cases decided in state courts under the savings to suitors jurisdiction.

The United States Constitution provides that the federal judicial power "shall extend ... to all Cases of admiralty and maritime Jurisdiction." U.S. Const., art. III, § 2, cl. 1. However, federal courts do not have exclusive jurisdiction over maritime and admiralty cases. 28 U.S.C. § 1333 provides in part that

[t]he district courts shall have original jurisdiction, exclusive of the courts of the States, of:

(1) Any civil case of admiralty or maritime jurisdiction, saving to suitors in all cases other remedies to which they are otherwise entitled.

The United States Supreme Court has interpreted this language to allow state courts to entertain admiralty and maritime cases. See, e.g., American Dredging Co., 510 U.S. at 446-47. However state courts may not

"attempt to make changes in the 'substantive maritime law.' " That proviso is violated when the state remedy "works material prejudice to the characteristic features of the general maritime law or interferes with the proper harmony and uniformity of that law in its international and interstate relations."

Id. at 447, 114 S.Ct. at 985 (citations omitted).

The mariners make two arguments as to why Alaska Civil Rule 82 would violate "substantive maritime law." First, they claim that, historically, attorney's fees and costs have been prohibited in admiralty cases, and that any award thereof would "work[ ] material prejudice to the characteristic features of the general maritime law." Second, the mariners argue that allowing an award of attorney's fees and costs is an improper intrusion of a state into "substantive maritime law" when viewed from a policy perspective. Specifically they argue that awarding attorney's fees and costs would "interfere[ ] with the proper harmony and uniformity of [admiralty] law in its international and interstate relations[.]"

We note as a preliminary matter that, if the mariners are to prevail, Williams v. Eckert, 643 P.2d 991 (Alaska 1982), must be overruled. In Williams, we held that federal admiralty law did not prohibit the application of Civil Rule 82 in awarding attorney's fees in admiralty cases heard in our superior courts. We stated:

Eckert sued in state court to recover his vessel. One of the remedial adjuncts of that suit was the right to recover attorney's fees under Alaska Civil Rule 82, if he prevailed. Congress has not prohibited such an award in state actions arising out of the admiralty jurisdiction of the United States. Moreover, an award of attorney's fees in a state court does not frustrate or displace the essential features of substantive maritime law. It is merely remedial in nature.

Id. at 997. The mariners claim that Williams v. Eckert conflicts with federal law.

a. The "American Rule" regarding attorney's fee awards is not "characteristic" of admiralty law.

The mariners claim that federal admiralty law historically has prohibited awards of attorney's fees and therefore the award of attorney's fees was error. We disagree.

The mariners cite no federal statute, but rely on the federal and admiralty common law to support their argument that awards of attorney's fees are prohibited in admiralty cases. 6 None of the cases cited by the mariners are relevant to this case because the cited cases involve situations where federal admiralty law is litigated in federal court. In general, all federal courts (and all state courts with the exception of Alaska) follow the "American rule," pursuant to which neither party is entitled to an award of attorney's fees. See Home Savings Bank v. Gillam, 952 F.2d 1152, 1162 (9th Cir.1991) ("Since the Supreme Court's decision in Alyeska Pipeline Serv. Co. v. Wilderness Soc'y, 421 U.S. 240, 95 S.Ct. 1612, 44 L.Ed.2d 141 (1975), the rule in federal courts has been that, absent an express statutory command, attorney's fees will not be awarded in civil cases.").

The prohibition against awarding attorney's fees in admiralty cases stems not from admiralty law itself, but rather from the fee-shifting rules used in most American courts. In The Baltimore, 75 U.S. (8 Wall.) 377, 19 L.Ed. 463 (1869), the United States Supreme Court refused to allow attorney's fees. However, the Court did not rely upon admiralty law, but relied on a generally applicable law passed by Congress in 1853. More recently, in Vaughan v. Atkinson, 369 U.S. 527, 82 S.Ct. 997, 8 L.Ed.2d 88 (1962), the Court allowed attorney's fees to be awarded in admiralty cases where equity demands it. As equity must be invoked in order to award attorney's fees, the decision implies that attorney's fees may not be awarded in the majority of admiralty cases; 7 however, the case does not state that the prohibition is a part of admiralty law itself.

Finally, the United States Supreme Court discussed the history of fee awards in American law in Alyeska Pipeline Service Co. v. Wilderness Society, 421 U.S. 240, 95 S.Ct. 1612, 44 L.Ed.2d 141 (1975). From the late 1700s until 1800...

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