Marriott v. Sedco Forex Intern. Resources, Ltd., Civ. A. No. 89-2689-Y

• Decision Date: 22 July 1993
• Docket Number: Civ. A. No. 89-2689-Y,89-2690-Y.
• Parties: Danna MARRIOTT, James Mathieson, James Slowey, and Paul McGourty, Plaintiffs, v. SEDCO FOREX INTERNATIONAL RESOURCES, LIMITED, Defendant.
• Court: U.S. District Court — District of Massachusetts

827 F. Supp. 59

Danna MARRIOTT, James Mathieson, James Slowey, and Paul McGourty, Plaintiffs, v. SEDCO FOREX INTERNATIONAL RESOURCES, LIMITED, Defendant.

Civ. A. Nos. 89-2689-Y, 89-2690-Y.

United States District Court, D. Massachusetts.

July 22, 1993.

COPYRIGHT MATERIAL OMITTED

Susan F. Drogin, William F. Looney, Jr., Bertram E. Snyder, Looney & Grossman, Boston, MA, for plaintiffs.

Richard H. Pettingell, Morrison, Mahoney & Miller, Boston, MA, for defendant.

MEMORANDUM AND ORDER

YOUNG, District Judge.

In this consolidated action, an American seaman and three foreign seamen seek to recover damages under American law from their employer, a British Virgin Islands corporation, for emotional distress they allegedly suffered after finding they had been inoculated with a vaccine testing positive for the Human Immunodeficiency Virus (HIV), the virus which causes the Acquired Immune Deficiency Syndrome (AIDS). The seamen were inoculated with the contaminated vaccine while working for their employer aboard an oil rig located off the coast of India. The seamen have tested HIV-negative to date, but seek to recover for the severe anxiety and trauma they allegedly suffered as a result of their fear of having contracted HIV and thus AIDS.

The plaintiffs assert Jones Act negligence claims, unseaworthiness claims under the general maritime law, and also related punitive damages claims. The defendant employer has moved for summary judgment on several grounds, first suggesting that neither United States law nor a United States forum is appropriate here, and on the basis that the plaintiffs fail to state a claim under the Jones Act and the general maritime law arising from the fear of contracting AIDS. The case presents novel and interesting issues regarding the accessibility of American maritime law and an American forum to American and foreign seamen stationed overseas, and challenges the boundaries of allowable recovery under maritime law for emotional distress without attendant physical injury.

I. FACTUAL BACKGROUND¹

A. THE PLAYERS

The plaintiff Paul J. McGourty ("McGourty," or the "American seaman") is a citizen and permanent resident of the United States residing in Braintree, Massachusetts. The plaintiffs Danna Marriott ("Marriott") and James Slowey ("Slowey") are citizens of the United Kingdom born in England, with residence in South Africa. James Mathieson ("Mathieson," and collectively with Marriott and Slowey, the "foreign seamen") is a citizen of the United Kingdom born in Scotland, also with residence in South Africa.

The defendant Sedco Forex International Resources, Limited ("Sedco"), the plaintiffs' employer, is a corporation organized and existing under the laws of the British Virgin Islands. Sedco is a wholly owned subsidiary of Sedco Forex International, Inc. ("Sedco International"), a corporation organized and existing under the laws of Panama. Neither Sedco nor Sedco International has offices in or performs work in the United States. Sedco International is a wholly owned subsidiary of Schlumberger Limited ("Schlumberger"), a publicly traded corporation organized and existing under the laws of the Netherland Antilles with principal offices in New York and Paris. At no material time did Sedco, Sedco International, or Schlumberger have any officers or directors in common.

Schlumberger owns several hundred subsidiaries throughout the world involved in a variety of businesses. Sedco and Sedco International are among Schlumberger's "Sedco Forex" group of subsidiaries, a group of companies involved in the oil and gas drilling business.² The Sedco Forex group engages in operations all over the world, including in and around the United States, but these operations are concentrated, if anywhere, in the Southern Asia and Middle East territorial and oceanic regions. (See Map, Stip. Ex. 30 at 26-27.) Schlumberger provides numerous centralized services to the Sedco Forex companies, including informational publications, and pension, profit sharing, and stock purchase plans. Many of these benefit plans and publications are administered and published in the United States, and Sedco subscribed to, and the plaintiffs belonged to, several of these benefits plans.³

Prior to 1984, the plaintiffs worked for Sedco, Inc., an independent Texas corporation involved in the oil and gas drilling business. On or about December 24, 1984, Sedco, Inc. was purchased by Schlumberger Technology Corporation ("Schlumberger Technology"), a Schlumberger subsidiary organized and existing under the laws of Texas. From January 1, 1985 to December 31, 1985, the plaintiffs were employed by Schlumberger Technology.⁴ After January 1, 1986 and during all relevant events, the plaintiffs were employed by Sedco.

Hitech Drilling Services Indian Private, Limited. ("Hitech") is a publicly traded corporation organized and existing under the laws of India engaged in the exploration and production of petroleum, gas, water, and other substances in and around India. Hitech's offices and operations are in India, and it performs no work in the United States. At all relevant times, thirty six percent (36%) of Hitech's stock was owned by Sedco Forex International Drilling ("Sedco Drilling"),⁵ a Schlumberger subsidiary organized and existing under the laws of Panama which also has no offices in and conducts no business in the United States. The remaining sixty four percent (64%) of Hitech's stock was at all relevant times owned by members of the Indian public or by Indian corporations.

B. THE OVERSEAS EVENTS

On March 30, 1987, Sedco entered into an agreement with Hitech under which Sedco agreed to provide Hitech with technical personnel for use in Hitech's exploration of India's land and continental shelf for the presence of petroleum and gas products. Pursuant to this agreement, Sedco assigned all four plaintiffs to work aboard Hitech's drill rig TAHARA, a vessel owned by Hitech and maintained under Liberian registry.⁶ The relevant employment contracts signed between the plaintiffs and Sedco for the TAHARA expedition are dated July 1, 1987. Sedco signed these contracts in London, England, but it is not clear when and where the plaintiffs signed them. There is no evidence that the plaintiffs signed these contracts in the United States. At all material times while aboard the TAHARA, the plaintiffs were under the direct supervision of Sedco personnel with respect to the day to day operations of the TAHARA, but the overall management of the TAHARA, including when and where the TAHARA was to conduct its operations, remained with Hitech.

On January 5, 1989, while the TAHARA was engaged in operations above India's continental shelf, Dr. Jagdale, an Indian national employed by Hitech, discovered that one of the TAHARA's catering staff had developed hepatitis. Dr. Jagdale recommended that all crew members, including the plaintiffs, be inoculated against the Hepatitis virus. In response to this recommendation, fifty-five (55) vials of Globunal immunaglobulin ("Globunal"), manufactured in India in 1988, and fifty-five (55) syringes, were delivered to the TAHARA. At or about this time, Dr. Jagdale's tour of duty on the TAHARA ended, and he was replaced by Dr. M.H. Baig, also an Indian national employed by Hitech. On or about January 14, 1989, all members of the crew then onboard the TAHARA, including the plaintiffs, received Globunal injections, inoculating them against Hepatitis. One vial of Globunal, the fifty-fifth, remained.

On March 6, 1989, The Times of India published an article reporting that 30 percent of blood products manufactured in India in 1988 were contaminated with the HIV, the virus which causes AIDS. On March 12, 1989, copies of that issue of The Times of India were distributed onboard the TAHARA. In response to concerns of the crew members, on March 17, 1989, the fifty-fifth remaining vial of Globunal was transported to the Indian Council of Medical Research's Institute of Immunohematology in Bombay for testing.⁷ The vial was found to be positive for the presence of HIV antibodies on the ELISA test, a well-known and commonly-used test for detecting HIV. Sometime after March 18, 1989, the plaintiffs were informed that the results of the ELISA test had been positive.

To date, none of the plaintiffs have tested positive for the HIV, but all have suffered severe emotional distress due to their fear of having contracted HIV and AIDS. None of the plaintiffs have as yet sought a remedy in any other jurisdiction.

On November 22, 1989, the American seaman (McGourty) and the three foreign seamen (Marriott, Mathieson, and Slowey) filed two separate actions in this Court, both complaints naming as defendants Schlumberger and Sedco International. On February 19, 1991, the two cases were consolidated. On September 25, 1992, all four plaintiffs filed a Second Amended Complaint (the "Complaint"), substituting Sedco as defendant for Schlumberger and Sedco International. Pursuant to a contemporaneous joint stipulation, Sedco agreed to consent to personal jurisdiction in the District of Massachusetts. The plaintiffs' Complaint asserts negligence claims under the Jones Act, unseaworthiness claims under the general maritime law, and also related punitive damages claims. The defendant Sedco here moves for summary judgment.

II. ANALYSIS

A. SUMMARY JUDGMENT STANDARD

Summary judgment shall be granted only when the record demonstrates that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c); Celotex v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 2553, 91 L.Ed.2d 265 (1986). The party moving for summary judgment bears the burden of demonstrating its legal entitlement to summary judgment, Lopez v. Corporacion Azucarera de Puerto Rico, 938 F.2d 1510, 1516 (1st Cir.1991), and a court must view the record in the light most favorable to the non-moving party. Mesnick v. General Elec. Co.,...