In re BPZ Res., Inc.

• Decision Date: 09 March 2012
• Docket Number: No. 14–11–00923–CV.,14–11–00923–CV.
• Citation: 359 S.W.3d 866
• Parties: In re BPZ RESOURCES, INC. and BPZ Energy, Inc., Relators.
• Court: Texas Court of Appeals

359 S.W.3d 866

In re BPZ RESOURCES, INC. and BPZ Energy, Inc., Relators.

No. 14–11–00923–CV.

Court of Appeals of Texas, Houston (14th Dist.).

Jan. 31, 2012.Rehearing Overruled March 9, 2012.

Kathleen Hopkins Alsina, Houston, for relators.

Gary Riebschlager, Houston, for real party in interest.

Panel consists of Justices FROST, SEYMORE, and JAMISON.

OPINION

MARTHA HILL JAMISON, Justice.

On October 21, 2011, relators BPZ Resources, Inc and BPZ Energy, Inc. filed a petition for writ of mandamus in this court. See Tex. Gov't Code Ann. § 22.221; see also Tex.R.App. P. 52. In the petition, relators ask this court to compel the Honorable Robert Schaffer, presiding judge of the 152nd District Court of Harris County to vacate his order denying their motion to dismiss based on forum non conveniens. We conditionally grant the petition.

I. Background

On January 30, 2008, a Peruvian-flagged oil tanker named the “B.A.P. Supe” (“Supe”) exploded and sank in the waters off the coast of Peru. At the time it sank, the Supe was moored near a crude oil production platform named the CX–11. Two crewmen died from injuries as a result of the explosion and several more were injured. BPZ Exploracion y Produccion (“BPZ Peru”), a Peruvian company, owns the platform CX–11. Relator BPZ Energy, a Texas company, is the parent company of BPZ Exploracion y Produccion; relator BPZ Resources, Inc., a Texas company, is the parent company of BPZ Energy. Tecnomarine, a Peruvian company, provided the offshore support vessels and crew vessels and contracted with the Peruvian Navy to charter the Supe. On December 18, 2008, several of the crewmembers and their family members (real parties in interest) sued relators in the 152nd District Court in Harris County for injuries arising from the sinking of the Supe.

It is undisputed that a leak of crude oil on board the Supe caused the explosion. The Harbor Master in Peru appointed an independent expert to investigate the accident. According to the expert's report, the “wells which were producing crude oil were required to deliver a certain quantity of product each day to avoid being closed, and for this reason product was discharged from the wellheads ... to the calibration tank located on the second level of the platform. In turn, from the calibration tank of the CX–11 platform, crude oil ... was intermittently pumped to the BAP Supe 24 hours per day.” ¹

On the night before the explosion, crew members noticed that the center hold of the Supe, which was not designed to store oil, had become flooded with crude oil. According to the independent expert, after inspecting the flooded center hold, a decision was made to “open the cargo hatch cover of the compartment and install air extractors to remove petroleum vapor in order to clear the compartment and remove the petroleum spilled inside.” After sunrise the next day, the petroleum that had spilled into the center hold began to heat up, reaching a temperature higher than 35 degrees Celsius (95 degrees Farenheit). The expert concluded that the heating of the petroleum created “an atmosphere saturated with petroleum vapor.” The expert stated that “[w]hen the main cover of the center hold was removed, air entered through the upper section of the compartment, mixing with the petroleum vapor, resulting in an explosive atmosphere inside the compartment.” The expert concluded that the initial cause of the accident was “Breakage of the seal rings of the expansion joint of the commercial pipes of starboard tank No. 3 located inside the center hold of the ship before the access control valve of the pipes of the [starboard tank No. 3].” According to the expert, the causes of the fire were (1) the flooding of the center hold with crude oil, (2) formation of oil vapors due to the temperature of the crude oil being higher than the environmental temperature, and (3) entry of air into the center hold when the main hatch cover was opened, permitting sparks from the hydraulic arm motor to ignite the petroleum vapors.

On December 18, 2008, real parties, all residents of Peru, filed suit against BPZ Resources, Inc. and BPZ Energy, Inc. in Harris County for negligence in the explosion of the Supe. On May 19, 2009, relators filed a motion to dismiss on the basis of forum non conveniens. In their live petition, the real parties assert various personal injury and wrongful death claims against the relators. Alleging that the relators own the Supe, the real parties seek damages under general maritime law based upon the alleged unseaworthiness of the Supe. The real parties also assert negligence claims, including wrongful death and survival claims, based upon the alleged negligence of the relators. Relators allege the suit arose out of an incident that occurred within the territorial waters of Peru on a Peruvian Navy tankship, was brought by residents of Peru, and Peruvian law will apply. Relators further allege that four proceedings, both criminal and civil, arising from the incident, have either concluded or are on-going in Peru. They further cite the inconvenience of the parties in traveling to Texas and the inability to subject unwilling witnesses to subpoena in Texas as reasons for dismissal of the Texas suit.

Real parties responded to relators' motion, arguing that they will ensure that all Peruvian witnesses have the means and ability to travel to Houston. They also assured the court that all documents will be translated from Spanish to English. Real parties argued that Peru is not an adequate alternative forum and that the acts of corporate officers in Texas caused the explosion in Peru. Real parties further argue that decisions made by corporate officers domiciled in Houston led to the accident. Real parties' theory of the case revolves around decisions made in Houston to step up production on the CX–11 platform. Real parties allege that relators made decisions to step up production, which required storage of more oil on the Supe than it was equipped to handle. Real parties allege relators did so despite evidence that the Supe was too old and ill-maintained to handle the extra load. They allege this is the true cause of the explosion.

The trial court denied relators' motion to dismiss. At the conclusion of the hearing, the attorney for the real parties asked the trial court if it would like proposed findings of fact and conclusions of law. The court stated it did not necessarily want proposed findings, but left the decision to the parties whether they wanted to submit proposed findings and conclusions. The mandamus record does not contain findings of fact and conclusions of law. Relators filed this original proceeding seeking mandamus relief, asserting the trial court abused its discretion because proper application of the forum non conveniens statute requires dismissal.

II. Mandamus Standard

An appeal is not an adequate remedy when a motion to dismiss for forum non conveniens grounds is erroneously denied, so mandamus relief is available if it is otherwise warranted. In re Gen. Elec. Co., 271 S.W.3d 681, 685 (Tex.2008). We review a trial court's refusal to dismiss on forum non conveniens grounds for abuse of discretion. Id. A trial court abuses its discretion if it acts arbitrarily, unreasonably, or without reference to any guiding principles. Id.

Waiver

In their response, real parties raise a waiver issue and claim that the petition should be denied because relators' motion was not timely filed. The real parties assert that under Rule 86 of the Rules of Civil Procedure, the relators were required to file their motion to dismiss based on forum non conveniens with or before the filing of the relators' answer. But a motion to dismiss based on forum non conveniens is not a motion to transfer venue under Rule 86. See Tex.R. Civ. P. 86. Section 71.051(d) governs the timeliness of the relator's motion to dismiss based on forum non conveniens. See Tex. Civ. Prac. & Rem.Code Ann. 71.051 (West 2011). Under this statute, the relators had to file their motion to dismiss “not later than 180 days after the time required for filing a motion to transfer venue of the claim or action.” Id. Rule 86 of the Rules of Civil Procedure requires filing of a motion to transfer venue “prior to or concurrently with any other plea, pleading or motion[.]” See Tex.R. Civ. P. 86. Relators filed their original answer on February 2, 2009, and their motion to dismiss on May 19, 2009, well within the 180–day time limit. Therefore, relators' motion was timely, and relators have not waived their claim of forum non conveniens.

III. Forum Non Conveniens

Section 71.051 of the Texas Civil Practice and Remedies Code governs the dismissal of a claim or action under the doctrine of forum non conveniens in personal-injury or wrongful-death cases filed in Texas courts. ² In deciding whether “in the interest of justice” and “for the convenience of the parties” a claim or action would be more properly heard in another forum, the trial court must consider the six factors set forth in section 71.051(b), to the extent these factors apply.³ See In re General Elec. Co., 271 S.W.3d at 685–87.

Section 71.051(b) provides:

If a court of this state, on written motion of a party, finds that in the interest of justice and for the convenience of the parties a claim or action to which this section applies would be more properly heard in a forum outside this state, the court shall decline to exercise jurisdiction under the doctrine of forum non conveniens and shall stay or dismiss the claim or action. In determining whether to grant a motion to stay or dismiss an action under the doctrine of forum non conveniens, the court shall consider whether:

(1) an alternate forum exists in which the claim or action may be tried;

(2) the alternate forum provides an adequate remedy;

(3) maintenance of the claim or action in the courts of this state would work a substantial injustice to the moving party;

(4) the alternate forum, as a...