De Joseph v. Odfjell Tankers (Usa), Inc.

• Decision Date: 18 April 2002
• Docket Number: No. Civ.A. G-01-215.,Civ.A. G-01-215.
• Citation: 196 F.Supp.2d 476
• Parties: Ernany DE JOSEPH, Plaintiff, v. ODFJELL TANKERS (USA), INC., Odfjell Tankers A.S.A., Odfjell A.S.A., and M/T Bow Fagus, Defendants.
• Court: U.S. District Court — Southern District of Texas

196 F.Supp.2d 476

Ernany DE JOSEPH, Plaintiff, v. ODFJELL TANKERS (USA), INC., Odfjell Tankers A.S.A., Odfjell A.S.A., and M/T Bow Fagus, Defendants.

No. Civ.A. G-01-215.

United States District Court, S.D. Texas, Galveston Division.

April 18, 2002.

Ronald Joseph Kormanik, Sydow Kormanik, Houston, TX, Michael David Sydow, Berner Liipfert, Houston, TX, for Plaintiff.

Kenneth D. Kuykendall, Royston Rayzor, Houston, TX, James Richard Watkins, Royston Rayzor, Galveston, TX, for Defendants.

ORDER GRANTING DEFENDANTS' MOTION TO DISMISS

KENT, District Judge.

Plaintiff Ernany De Joseph ("De Joseph") is a Filipino seaman who seeks to recover damages under the Jones Act, 46 U.S.C. § 688 et seq., and the General Maritime Law of the United States, for injuries allegedly sustained while working aboard the M/T BOW FAGUS. Now before the Court is a Motion to Dismiss filed by Defendants Odfjell A.S.A., Odfjell Chemical Tankers A.S.A., and Odfjell (USA), Inc. (collectively "Defendants").¹ Because Plaintiff's employment contract contains a valid forum selection clause mandating that Plaintiff's dispute be brought before a Filipino tribunal, Defendants' Motion to Dismiss is hereby GRANTED, and Plaintiff's action is hereby DISMISSED WITHOUT PREJUDICE for refiling in the Republic of the Philippines.

The facts giving rise to this lawsuit are predominantly undisputed. Plaintiff De Joseph is a Filipino citizen and resident who was working as a seaman aboard a Norwegian-flagged vessel known as the M/T BOW FAGUS. Defendant Odfjell A.S.A. was Plaintiff's employer, as well as the manager and operator of the vessel. Defendant Odfjell Chemical Tankers A.S.A. was the owner of the M/T BOW FAGUS, and Defendant Odfjell (USA), Inc. was the port operator. On November 30, 1999, De Joseph, like all other Filipino seamen hired to work aboard foreign vessels, executed a contract of employment approved by the Philippine Overseas Employment Agency ("POEA"). Paragraph 4 of the POEA employment contract stipulates:

All claims, complaints or controversies relative to the implementation of this overseas employment contract shall be resolved through the established Grievance Machinery in the Revised Employment Contract for Seafarers. If result of the procedure is unsatisfactory to any of the parties, it may be appealed to the management of the company or with the Philippine Labor Attache or consular office overseas. This procedure shall be without prejudice to any action that the parties may take before the appropriate authority.

The contract also states in Paragraph 1 that "[t]he terms and conditions of the revised Employment Contract governing the employment of all seafarers approved per Department Order No. 33 and Memorandum Circular No. 55 both Series of 1996 shall be strictly and faithfully observed."

Pursuant to Paragraphs 1 and 4 of the POEA employment contract, the Revised Employment Contract for Seafarers ("Revised Employment Contract") is incorporated into the POEA employment contract. The Revised Employment Contract includes the following pertinent provisions. Section 16(A) sets forth the seaman's grievance machinery, specifically requiring an aggrieved seaman to first submit his complaint to the head of the relevant department, and then, and only upon obtaining an unsatisfactory result, to lodge an appeal with the management of the company or a Philippine Labor Attache or consular office overseas. Section 16(C) makes clear, however, that the grievance procedure "shall be without prejudice to the jurisdiction of the Philippine Overseas Employment Administration (POEA) or the National Labor Relations Commission (NLRC) over any unresolved complaints arising out of shipboard employment that shall be brought before it by the seafarer." Section 28 of the Revised Employment Contract next provides that "[t]he Philippine Overseas Employment Administration (POEA) or the National Labor Relations Commission (NLRC) shall have original and exclusive jurisdiction over any and all disputes or controversies arising out of or by virtue of this Contract." Additionally, Section 29 dictates that "[a]ll rights and obligations of the parties to this Contract, including the annexes thereof, shall be governed by the laws of the Republic of the Philippines, international conventions, treaties and covenants where the Philippines is a signatory." Finally, the Revised Employment Contract also incorporates the Migrant Workers' and Overseas Filipinos' Act of 1995 ("MWOFA"), which grants the Labor Arbiters of the National Labor Relations Commission ("NLRC") in the Philippines the exclusive jurisdiction to hear "claims arising out of an employer-employee relationship or by virtue of any law or contract involving Philippine workers for overseas employment including claims for actual, moral, exemplary and other forms of damages."

On August 3, 2000, while the M/T BOW FAGUS was docked in the navigable waters of Houston, Texas, Plaintiff De Joseph was ordered to wash and dry Tank 9C in preparation for cargo loading. While conducting the standard washing and purging operations, De Joseph fell down the tank's main hatch and onto a ladder well landing. De Joseph was immediately rushed to Ben Taub Hospital in Houston, Texas for emergency medical treatment, where physicians fused together two broken vertebrae in his neck with a steel rod. On April 12, 2001, De Joseph filed suit against Defendants seeking to recover damages under the Jones Act and the General Maritime Law of the United States for injuries arising from the August 3, 2000 incident. Defendants thereafter filed a Motion to Dismiss, asking this Court to dismiss Plaintiff's action on the basis of the forum selection clause contained in Plaintiff's POEA employment contract, or in the alternative, on the grounds of forum non conveniens.² Because the Court finds that the forum selection clause at issue here is both valid and enforceable, it will not reach the issue of forum non conveniens.

II.

Although Defendants neglect to identify the precise procedural rule under which their Motion to Dismiss is brought, this Court has recently opined that a motion to dismiss based upon the enforcement of a forum selection clause is governed by Fed. R.Civ.P. 12(b)(3). See Psarros v. Avior Shipping, Inc., No. Civ.A. G-01-284, 2002 WL 507534, at *2, 4 (S.D.Tex. Mar.29, 2002) (Kent, J.); MacPhail v. Oceaneering Int'l, Inc., 170 F.Supp.2d 718, 721 (S.D.Tex.2001) (Kent, J.) (both observing that although the Fifth Circuit has not conclusively established that Rule 12(b)(3) is the precise procedural rule governing a motion to dismiss based upon the enforcement of a forum selection clause, the Fifth Circuit's holding in Mitsui & Co. (USA), Inc. v. M/V MIRA, 111 F.3d 33, 37 (5th Cir.1997), implies such a view).³

Rule 12(b)(3) permits a defendant to move for dismissal of an action on the basis of improper venue. The majority of courts agree that once a defendant has raised the issue of improper venue by motion, the burden of sustaining venue lies with the plaintiff. See McCaskey v. Continental Airlines, Inc., 133 F.Supp.2d 514, 523 (S.D.Tex.2001) (citing Seariver Maritime Fin. Holdings, Inc. v. Pena, 952 F.Supp. 455, 458 (S.D.Tex.1996)); Bigham v. Envirocare of Utah, Inc., 123 F.Supp.2d 1046, 1048 (S.D.Tex.2000); EEOC v. Mustang Mobile Homes, Inc., 88 F.Supp.2d 722, 724 (W.D.Tex.1999). But see Texas Marine & Brokerage, Inc. v. Euton, 120 F.Supp.2d 611, 612 (E.D.Tex.2000); Bounty-Full Entm't, Inc. v. Forever Blue Entm't Group, Inc., 923 F.Supp. 950, 957-58 (S.D.Tex.1996). In the absence of an evidentiary hearing on the matter, a court should allow a plaintiff to carry this burden by setting forth facts that, if taken as true, establish venue. See McCaskey, 133 F.Supp.2d at 523; Bigham, 123 F.Supp.2d at 1048; cf. Wilson v. Belin, 20 F.3d 644, 648 (5th Cir.1994) (determining that when a court rules upon a motion to dismiss for lack of personal jurisdiction without conducting an evidentiary hearing, "the plaintiff may bear his burden by presenting a prima facie case that personal jurisdiction is proper"). The court should therefore accept uncontroverted facts contained in the plaintiff's pleadings as true and resolve any conflicts in the parties' affidavits in the plaintiff's favor. McCaskey, 133 F.Supp.2d at 523. While a defendant need not affirmatively disprove all bases for the plaintiff's venue choice, the court will nevertheless give the plaintiff every benefit of the doubt in ascertaining the controlling facts. See id.

III.

The forum selection clause at issue here has twice been confronted by courts in this jurisdiction. In Marinechance Shipping Ltd. v. Sebastian, 143 F.3d 216 (5th Cir. 1998), the Fifth Circuit examined a virtually identical forum selection clause contained in a POEA employment contract that also incorporated by reference the provisions of the Revised Employment Contract for Seafarers. Relying upon Section 28 of the Revised Employment Contract, and recognizing that the Revised Employment Contract also incorporated the terms of the MWOFA, the Fifth Circuit determined that the injured Filipino seaman was required to adjudicate his dispute in the Philippines. Id. at 220. The court then analyzed the POEA forum selection clause against the backdrop of the Supreme Court's jurisprudence in M/S Bremen v. Zapata Off-Shore, 407 U.S. 1, 92 S.Ct. 1907, 32 L.Ed.2d 513 (1972), and Carnival Cruise Lines, Inc. v. Shute, 499 U.S. 585, 111 S.Ct. 1522, 113 L.Ed.2d 622 (1991), and ultimately held that the forum selection clause was both valid and enforceable, and applicable to the seaman's tort claims. Id. at 220-22.

Shortly following the Fifth Circuit's ruling in Marinechance, this Court also had occasion to evaluate the enforceability of a POEA forum selection clause in Sabocuhan v. Geco-Prakla, 78 F.Supp.2d 603 (S.D.Tex.1999) (Kent, J.). In Sabocuhan, the plaintiff was an injured Filipino seaman whose POEA employment contract also...