Rodriguez v. Transnave, Inc.

• Decision Date: 11 January 1993
• Docket Number: No. H-90-3445.,H-90-3445.
• Parties: Patricio V. RODRIGUEZ, Plaintiff, v. TRANSNAVE, INC. and Transportes Navieros Ecuatorianos, Defendants.
• Court: U.S. District Court — Southern District of Texas

810 F. Supp. 194

Patricio V. RODRIGUEZ, Plaintiff, v. TRANSNAVE, INC. and Transportes Navieros Ecuatorianos, Defendants.

No. H-90-3445.

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

January 11, 1993.

Robert D. Bates, Bates & Lee, Houston, TX, for plaintiff.

William M. Jensen, Royston, Rayzor, Vikery & Williams, L.L.P., Houston, TX, for defendants.

MEMORANDUM AND ORDER

WERLEIN, District Judge.

Pending before the Court is the "Motion to Dismiss of Transnave," filed by Defendant Transportes Navieros Ecuatorianos ("Transnave"), on the basis of foreign sovereign immunity and the doctrine of forum non conveniens. For the reasons that follow, the motion is DENIED.

Plaintiff Patricio Rodriguez is a resident and citizen of Ecuador. Rodriguez was employed by Transnave an entity organized under Ecuadorian law, as a second engineer aboard the vessel ISLA SALANGO. The SALANGO is a 12,677 gross ton general cargo vessel, flagged in Ecuador, and registered in the Ecuadorian port of Guayaquil.

Plaintiff alleges that he was injured during a fire aboard the SALANGO on October 3, 1989, while it was on a voyage from Yokohama, Japan to Esmeraldes, Ecuador. The precise location of the vessel during the fire may be in dispute. In his amended complaint Plaintiff claims that the vessel was being "operated offshore" from Honolulu, Hawaii, when he was injured. Transnave maintains that the vessel was located in international waters, approximately 750 nautical miles north-northwest of the Hawaiian Islands, when the Plaintiff was injured. It is undisputed that during the entire voyage the vessel SALANGO called at a United States port only once — at Honolulu, Hawaii on October 7, 1989 — in order to provide Plaintiff with additional medical assistance after his injury in the fire. Rodriguez was later brought to Houston, Texas for further medical treatment. The crew employed aboard the SALANGO on October 3, 1989 was entirely of Ecuadorian nationality, and the officers and directors of Transnave are all citizens and residents of Ecuador. Plaintiff brought this suit under the Jones Act, 46 U.S.C.App. § 688, and the general maritime laws of the United States, arguing that his injuries were caused by Transnave's negligence and the unseaworthiness of the SALANGO.

Foreign Sovereign Immunities Act

It is undisputed that Transnave is a legal entity created in 1971 by Ecuadorian Presidential decree, and defined by Ecuadorian law as an "Ecuadorian State Naval Entity which belongs to the National Armed Forces with Judicial Statute." As such, Transnave is an agency or instrumentality of a foreign state within the meaning of the Foreign Sovereign Immunities Act ("FSIA").

The FSIA was enacted in 1976, to govern "when and how parties can maintain a lawsuit against a foreign state or its entities in the courts of the United States."¹ Title 28 U.S.C. § 1604 provides (subject to certain international agreements) that "a foreign state shall be immune from the jurisdiction of the courts of the United States and of the States except as provided in Sections 1605 to 1607 of this chapter." Sections 1605-1607 set forth a series of specific exceptions in which a foreign state shall not be immune from the jurisdiction of the courts of the United States or of the States. Section 1605(a)(1) provides that a foreign state shall not be immune from jurisdiction of the courts of the United States in any case "in which the foreign state has waived its immunity either explicitly or by implication, ..." Plaintiff contends that Transnave has waived its claim of immunity in this case. The Court agrees.

Plaintiff filed the suit in October, 1990, against an entity bearing the name of Transnave, Inc., which appears from the record to have been a Florida corporation, and which was served by delivering process to C.T. Corporation System in Houston, Transnave, Inc.'s registered agent for service.²

Although Transnave, the Ecuadorian governmental entity, was neither named a defendant in the original case nor served with process, it voluntarily entered an appearance when it filed a Notice of Removal in this Court on November 7, 1990. In its Notice of Removal, Transnave alleged that it "is the defendant" in the case that had been filed in state court, that

this federal district Court has original jurisdiction under the provisions of Title 28 U.S.C. § 1332, and this action is one which may be removed to this Honorable Court by Petitioner pursuant to the provisions of Title 28 U.S.C. § 1441(d) because it is a civil action against a foreign state as defined in § 1603(a) of Title 28 of the United States Code inasmuch as Petitioner and Defendant is an agency or instrumentality of the foreign state within the meaning of Title 28 U.S.C. § 1603(b).

The case was thereby removed from state district court to this Court by Transnave itself, which asserted without qualification that this Court "has original jurisdiction" over the case. Moreover, § 1441(d), upon which Transnave relied, entitles a foreign state to remove an action against it to the district court of the United States for the district and division embracing the place where the action is pending, in order to provide a foreign state with a trial by the federal court without a jury.

Transnave's assertion that this Court has jurisdiction and Transnave's voluntary actions to enter an appearance, to claim the role of defendant, and to remove the case to this Court for trial by this Court, constitute a waiver under § 1605(a)(1) of any immunity it otherwise might have had under the FSIA. Moreover, it cannot be said that Transnave was required first to remove the case to federal court in order to assert its right under FSIA. The immunity set forth by § 1604 applies to the jurisdiction "of the courts of the United States and of the States." Had Transnave been served, or had it determined to intervene as the party that actually should have been named as defendant simply to claim foreign sovereign immunity, it could have done so in the State court where the action was pending. The State courts no less than the federal courts must respect foreign sovereign immunity under 28 U.S.C. § 1604. Moreover, the removal papers filed by Transnave made no reference whatever to any claim of immunity under FSIA; to the contrary, as noted above, Transnave claimed that this Court has original jurisdiction of this particular action in which Transnave "is the Defendant."

Several days after the removal, Defendant filed an Answer. Among other defenses, Transnave pled "the benefits and protections" of FSIA, and specifically pled "immunity from suit." Once waived, FSIA does not allow the foreign state to reassert immunity under the Act. Section 1605(a)(1) specifically provides that the foreign state shall not be immune where it has waived its immunity, "notwithstanding any withdrawal of the waiver which the foreign state may purport to effect except in accordance with the terms of the waiver." This provision precludes Transnave from withdrawing its waiver of immunity, even a few days later, after it has voluntarily appeared to invoke the jurisdiction of this Court, declared that this Court has original jurisdiction to try the case, and has removed the matter from State court to federal court under a statute that entitles defendant to a trial by the Court without a jury.

In Frolova v. Union of Soviet Socialist Republics, 761 F.2d 370, 377 (7th Cir.1985), the Court took note of the legislative history regarding implied waivers in the following language:

The legislative history of the FSIA gives three examples of cases in which courts have found implied waivers: (1) a foreign state has agreed to arbitration in another country; (2) a foreign state has agreed that a contract is governed by the law of a particular country; and (3) a foreign state has filed a responsive pleading in a case without raising the defense of sovereign immunity. H.R.Rep. No. 1487, 94th Cong., 2d Sess. 18, reprinted in 1976 U.S.Code Cong. & Ad.News 6604, 6617; S.Rep. No. 1310, 94th Cong., 2d Sess. 18. Since the FSIA became law, courts have been reluctant to stray beyond these examples when considering claims that a nation has implicitly waived its defense of sovereign immunity.

761 F.2d at 377.

The legislative history presumably is silent on circumstances as unusual as exist here — namely, the voluntary intervention and appearance of a foreign state that has not been sued or served with process, but which intervenes to claim the role of defendant and to invoke the jurisdiction of the Court. Such assertive action by Defendant implies a waiver of immunity that is at least the equivalent of omitting an assertion of immunity in a responsive pleading. Once the waiver has been made, Transnave cannot withdraw it.

Although Transnave's waiver was complete and irrevocable from the instance it declared and invoked the jurisdiction of this Court, much of what followed would also confirm an implied waiver of immunity by Transnave. For example, it did not file its Motion to Dismiss until November 16, 1992, more than two years after it removed the case to this Court. During those two years Defendant has participated in preparation of the case for trial pursuant to at least half a dozen scheduling orders of the Court, including four successive dates for trial docket call. All of the enlargements of time for the trial docket call and for the filing of a Joint Pretrial Order were on motions in which Transnave was a moving party. In October 1991 Transnave named a number of expert witnesses it expected to call at trial, only two out of nine of whom appear to have been from Ecuador; at the same time it represented to the Court that "discovery is continuing in this matter," that Defendant may...