Melancon v. MORRISON-KNUDSEN INTERNATIONAL COMPANY

• Decision Date: 09 February 1971
• Docket Number: Civ. A. No. 12995.
• Citation: 329 F. Supp. 981
• Parties: Mrs. Delta MELANCON v. MORRISON-KNUDSEN INTERNATIONAL COMPANY, Inc., et al.
• Court: U.S. District Court — Western District of Louisiana

329 F. Supp. 981

Mrs. Delta MELANCON v. MORRISON-KNUDSEN INTERNATIONAL COMPANY, Inc., et al.

Civ. A. No. 12995.

United States District Court, W. D. Louisiana, Lake Charles Division.

February 9, 1971.

Scofield & Bergstedt, Lake Charles, La., for plaintiff.

Donald E. Walter, U. S. Atty., Shreveport, La., William E. Gwatkin, III, Admiralty & Shipping Section, U. S. Dept. of Justice, Washington, D. C., for defendants.

EDWIN F. HUNTER, Jr., District Judge:

This action arises out of the death of Henry Melancon, who according to the record lost his life when bombs placed by the Viet Cong exploded and sank the Dredge JAMAICA BAY, on which he was employed, on or about January 9, 1967. Melancon was an employee of a joint venture called RMK-BRJ, a Navy cost-plus contractor, which in its capacity as a joint venture, was the bareboat charterer and operator of the JAMAICA BAY at the time of Melancon's death.

Plaintiff brings suit to recover for the death of Henry Melancon, her husband, naming RMK-BRJ in its capacity as a joint venture and separate juristic entity as the only defendant in the caption of her complaint, but in the body of the complaint naming as defendants and demanding collective judgment against only the four corporate members of the joint venture and not the joint venture itself. In prior proceedings, we here ruled that there was no suit pending against the joint venture, from which no judgment had been demanded, against which no process had issued, and which had never been served.¹ The Court also dismissed the cause against two of the four member corporations for insufficiency of service of process and lack of jurisdiction over the person.²

Following the ruling on jurisdictional matters, this suit was stayed pending a determination by the Bureau of Employee's Compensation of the Department of Labor whether plaintiff had a compensation remedy under the Defense Base Act, 42 U.S.C.A. §§ 1651-1654, or the War Risk Hazards Act, 42 U.S.C.A. §§ 1701-1717, or either of them, the plaintiff having made a claim for compensation benefits, and the defendants claiming that the compensation remedy was exclusive so as to bar and preclude this action.³ On December 4, 1969, the Director of the Bureau of Employee's Compensation made a compensation order awarding death benefits to the plaintiff under War Risk Hazards Compensation Act. Following entry of the compensation order, on plaintiff's motion of August 11, 1970, we vacated the stay order and the case was restored to the active calendar. It is now pending upon motion of the defendants for summary judgment.

THE LEGAL ISSUES

1. Whether this suit may be maintained against two of the four members of the joint venture where all of the members are not subject to service of process and the joint venture has not been made a party to the litigation.

2. Whether the War Risk Hazards Compensation Act, under which plaintiff has claimed and been awarded compensation benefits, provides her with an exclusive remedy so as to preclude her from maintaining this action against her husband's employer to recover damages for his death, which occurred when bombs placed by the Viet Cong exploded and sank the dredge on which he was employed.

In its present posture, the case is pending against two corporate members of the joint venture. By motion for summary judgment, these two defendants contend that, standing alone, merely in their capacity as members of the joint venture, they may not be sued on a joint venture obligation and are not themselves obligated to the plaintiff on the cause of action she asserts.

Resolution of questions concerning capacity to sue or to be sued are by the Federal Rules of Civil Procedure left for the most part to state law. After discussing the capacity of individuals and corporations, Rule 17(b) of the Federal Rules of Civil Procedure provides that:

In all other cases capacity to sue or be sued shall be determined by the law of the state in which the district court is held, except (1) that a partnership or other unincorporated association, which has no such capacity by the law of such state, may sue or be sued in its common name for the purpose of enforcing for or against it a substantive right existing under the Constitution or laws of the United States * * *.

In order to determine whether the members of a joint venture may themselves be sued on an obligation of the joint venture, we examine Louisiana law.

In Louisiana, joint ventures are governed generally by the same rules as are partnerships. Frazell v. United States, 213 F.Supp. 457, 462 (W.D.La. 1963), reversed on other grounds 335 F. 2d 487 (5th Cir. 1964), cert. denied 380 U.S. 961, 85 S.Ct. 1104, 14 L.Ed.2d 152 (1965); Ault & Wiborg Co. v. Carson Carbon Co., 181 La. 681, 688, 160 So. 298, 300 (1935); Ludeau v. Avoyelles Cotton Co., 164 La. 275, 113 So. 846 (1927); Duncan v. Gill, 227 So.2d 376, 381-383 (La.App.1969), writ denied 255 La. 338-341, 230 So.2d 834-835 (1970), cert. denied 397 U.S. 1074, 90 S.Ct. 1522, 25 L.Ed.2d 809 (1970). Turning then to the Louisiana law of partnership, we find under Article 737 of the Louisiana Code of Civil Procedure that a partnership has the procedural capacity to be sued under its partnership name, but that (Art. 737):

The partners of an existing partnership may not be sued on a partnership obligation unless the partnership is joined as a defendant.

The Article is declaratory of the rule of law established by Louisiana jurisprudence, that liability upon the obligations of a Louisiana partnership does not become enforceable against the members thereof, separate and apart from the partnership itself, until the partnership has dissolved. E. B. Hayes Machinery Co. v. Eastham, 147 La. 347, 352-354, 84 So. 898, 899-900 (1920); Key v. Box, 14 La.Ann. 497 (1857); Moore v. Easom, 46 So.2d 162 (La.App.1950).⁴ In Louisiana, therefore, a judgment cannot be obtained against a member of a partnership upon a partnership obligation, while the partnership exists, except by also obtaining a judgment against the partnership itself. Snyder v. Davison, 172 La. 274, 278, 134 So. 89, 91 (1931); Harrison v. Frye, 46 So.2d 382 (La.App. 1950).

As observed in our earlier ruling on jurisdictional matters, the joint venture has not been made a party to this suit, no process has been issued against it, no prayer for relief has been made against it, and the suit against it simply does not exist. Since the joint venture as such is not a party defendant, the suit cannot be maintained against the two corporate members who still remain as defendant parties in the case.⁵ Kline v. C. W. Dawson Lumber Co., 230 La. 901, 911, 89 So.2d 385, 389 (1956). The action against Brown & Root, Inc., and J. A. Jones Construction Company, the two remaining corporate defendants, must therefore be dismissed. However, plaintiff now wishes to file supplemental pleadings seeking relief against RMK-BRJ and argues that service on one member of the joint venture constitutes valid service on it (the office and principal place of business of which is located in San Bruno, California). This would present another contested procedural issue which need not be faced today, because we feel the motion for summary judgment must be granted because plaintiff's exclusive remedy against her husband's employer for his death is provided by the War Risk Hazards Compensation Act.

At about the same time she commenced this action alleging that decedent had been "a member of the crew" of the Dredge JAMAICA BAY (Complaint, Art. V), plaintiff also filed a claim for compensation benefits with the Bureau of Employees' Compensation of the Department of Labor. This claim was contemplated by her decedent's employment contract, pursuant to which he was employed as an assistant superintendent by RMK-BRJ, the joint venture, which provided that compensation insurance benefits for injuries or illnesses arising out of the course of the employment were generally to be paid in accordance with the Longshoremen's and Harbor Workers' Compensation Act, as extended by the Defense Base Act, 42 U.S.C.A. §§ 1651-1654.

As to war risks, however, the employment contract made a distinction and expressly provided that (Clause 9(b)):

For injuries, disabilities, detention, death, or other losses arising out of or in connection with war, rebellion, and strife, or the acts of civil authority or of the armed forces of any government, the Employee's remedy shall be such, if any, as is provided in the War Risk Hazards Act (42 U.S.C. 1701-1717) or other statutes in amendment to or in substitution therefor; but the Contractor RMK-BRJ shall have no responsibility or liability to the Employee or his successors upon any claim from these causes. (Matter in brackets supplied).

The employer's reports disclosed that plaintiff's decedent had lost his life "when bombs placed by the Viet Cong exploded, sinking the dredge" on which he had been employed and his death clearly came within the war risk rather than the ordinary compensation category. In subsequent amplication of her compensation claim, plaintiff through her counsel accordingly made specific reference to the provision of her decedent's employment contract which called for application of the War Risk Hazards Compensation Act, stressed the report that her husband had been killed when the Viet Cong blew up the JAMAICA BAY, furnished some further documentation to establish that her decedent's death had been caused by a war risk hazard, emphasized that her claim was being made under the War Risk Hazards Compensation Act and not under the Defense Base Act, and contended that the War Risk Hazards Compensation Act did not contain any provision excluding the member of a crew of a vessel from compensation benefits thereunder. (See Exhibits A through F(4) attached).

Following entry of the stay order by this Court for an administrative determination of plaintiff's rights to compensation benefits, the Director of the Bureau...