De Oliveira v. Delta Marine Drilling Co.

• Decision Date: 30 August 1982
• Docket Number: No. 82-2024,82-2024
• Citation: 684 F.2d 337
• Parties: Aristeu Fontes DE OLIVEIRA, Appellee, v. DELTA MARINE DRILLING COMPANY, Appellant. Summary Calendar.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 337

684 F.2d 337

Aristeu Fontes DE OLIVEIRA, Appellee, v. DELTA MARINE DRILLING COMPANY, Appellant.

No. 82-2024

Summary Calendar.

United States Court of Appeals Fifth Circuit.

Aug. 30, 1982.

Dixie Smith, Houston, Tex., for appellant.

Robert A. Chaffin, Houston, Tex., for appellee.

Appeal from the United States District Court for the Southern District of Texas.

Before BROWN, GEE and RUBIN, Circuit Judges.

JOHN R. BROWN, Circuit Judge:

Delta Marine Drilling Co. (Delta) brings an interlocutory appeal from the District Court's denial of its motion to dismiss on grounds of forum non conveniens. While the choice of law decision is a close call, we believe Delta's point is well taken and reverse and remand.

I.

This case involves counting, specifically, counting contacts with different countries. Aristeu Fontes de Oliveira, a Brazilian national, brought suit against Delta, a Tyler, Texas corporation and owner of a drilling vessel, for personal injuries. Adding contacts, he asserts that the substantial links between the accident and the United States give the court jurisdiction to apply American statutory and General Maritime law to this cause of action. Delta, also doing its sums, argues that the number of contacts with the United States falls short of the necessary minimum. The District Court found de Oliveira's addition more nearly correct but allowed Delta an interlocutory appeal from its order, pursuant to 28 U.S.C. § 1292(b). We then granted leave to appeal to answer the question whether there exist sufficient contacts between the accident and the United States to justify applying American law.

The cause of action arises out of a personal injury that de Oliveira, a Brazilian citizen who has lived in Brazil all his life, sustained when the gangway connecting a vessel to a fixed platform collapsed. Schlumberger, Ltda., a Brazilian corporation, hired De Oliveira in Brazil as a geophysical assistant and car painter. Schlumberger, Ltda., which operates only in Brazil, had a contract for wire line well logging with Petrobras, the Brazilian national oil monopoly, which owned the platform in question.

On May 26, 1976, De Oliveira departed from Aracaju, Brazil, on a crew boat that took him to Delta's drilling tender vessel DELTA NINE, a converted cargo ship of Panamanian registry. DELTA NINE, after its conversion at the Avondale Shipyard in New Orleans, Louisiana, had sailed to Brazil in December 1974, where Delta and its Brazilian subsidiary, Perbras, also had a contract with Petrobras. De Oliveira had never previously worked on DELTA NINE or on Petrobras' platform.

Once on board, De Oliveira and his co-workers proceeded to the Petrobras platform via a catwalk gruesomely but accurately known in the trade as a widowmaker, see Law v. Sea Drilling, 510 F.2d 242 (5th Cir. 1975), which linked it to DELTA NINE. Many of the tools and the equipment which De Oliveira used were placed on the widowmaker. A Schlumberger, Ltda. engineer was in charge of the well logging crew. Perbras, however, ordered supplies for and employed the supervisory personnel of DELTA NINE. Dale Clements, a Delta/Perbras employee in command of DELTA NINE, gave no orders to de Oliveira or his colleagues. The line of authority, then, ran as follows: Petrobras governed all; Delta and Perbras carried out its work on the tender vessel, and Schlumberger, Ltda. supervised the platform operations.

While de Oliveira gathered tools on the widowmaker early in the pre-dawn morning of May 27, 1976, a submerged portion of the port anchor chain holding the tender vessel parted. The bow of DELTA NINE drifted downwind from the platform, the widowmaker came unhooked, and De Oliveira tumbled into the sea. As he fell, the widowmaker and his tool box struck him. Although, fortunately, no widow was made, de Oliveira sustained severe injuries, aggravated by his remaining in the water for over half an hour before being brought up to the deck. ¹

II.

The District Court, 527 F.Supp. 332, citing the seven choice of law factors of Lauritzen v. Larsen, 345 U.S. 571, 73 S.Ct. 921, 97 L.Ed. 1254 (1953), as well as Hellenic Lines Ltd. v. Rhoditis, 398 U.S. 306, 90 S.Ct. 1731, 26 L.Ed.2d 252 (1970) (eighth factor-"base of operations"), held that "substantial and significant contacts exist" between the accident and the forum. Once it finds that American law applies, the District Court lacks discretion to dismiss. Fisher v. The Agios Nicolaos V, 628 F.2d 308, 314 (5th Cir. 1980), cert. denied sub nom., Valmas Bros. Shipping, S. A. v. Fisher, --- U.S. ----, 102 S.Ct. 92, 70 L.Ed.2d 84 (1981); Volyrakis v. M/V ISABELLE, 668 F.2d 863 (5th Cir. 1982). See generally Piper Aircraft v. Reyno, --- U.S. ----, ----, 102 S.Ct. 252, 266, 70 L.Ed.2d 419, 437 (1981).

In an intervening decision, published after the District Court entered its findings, we reconsidered the Lauritzen factors and the choice of law problem in the context of a foreign accident. In Chiazor v. Transworld Drilling Co., Ltd., 648 F.2d 1015 (5th Cir. 1981), cert. denied, --- U.S. ----, 102 S.Ct. 1714, 72 L.Ed.2d 136 (1982), we...