Sherrill v. Brinkerhoff Maritime Drilling

• Citation: 615 F. Supp. 1021
• Decision Date: 09 August 1985
• Docket Number: No. C-82-0836-WWS,C-83-0603-WWS to C-83-0607-WWS and C-83-1022-WWS.,C-82-2565-WWS,C-82-2566-WWS,C-82-2568-WWS,C-82-2569-WWS,C-82-0836-WWS
• Parties: Cora E. SHERRILL, Individually and as Administratrix of the Estate of Max O. Sherrill, deceased, Plaintiff, v. BRINKERHOFF MARITIME DRILLING, a corporation, et al., Defendants. Timothy P. JONES, Plaintiff, v. BRINKERHOFF MARITIME DRILLING, a corporation, et al., Defendants. David Alfred LOWRY, Plaintiff, v. BRINKERHOFF MARITIME DRILLING, a corporation, et al., Defendants. David S. SCHWARTZ, as Administratrix of the Estate of James C. Owen, Plaintiff, v. BRINKERHOFF MARITIME DRILLING, a corporation, et al., Defendants. Murray Robert COLE, Plaintiff, v. BRINKERHOFF MARITIME DRILLING, a corporation, et al., Defendants. Shereen Ramona ZIPFEL, Individually and as Administratrix of the Estate of Ian Charles Zipfel, deceased, Plaintiff, v. HALLIBURTON CO., et al., Defendants. Ten Fong CRAIG, Individually and as Administratrix of the Estate of William Henry Craig, deceased, Plaintiff, v. ATLANTIC RICHFIELD CO., et al., Defendants. CHAN LUCK CHEE, Plaintiff, v. McCLELLAND ENGINEERS, INC., et al., Defendants. Patrick Paul GRUNKE, Plaintiff, v. ATLANTIC RICHFIELD CO., et al., Defendants. Vyner Gerard ALBUQUERQUE, Plaintiff, v. OCEANEERING INTERNATIONAL, INC., et al., Defendants. Michael Wayne CRAIG, Plaintiff, v. BRINKERHOFF MARITIME DRILLING, et al., Defendants.
• Court: U.S. District Court — Northern District of California

615 F. Supp. 1021

Cora E. SHERRILL, Individually and as Administratrix of the Estate of Max O. Sherrill, deceased, Plaintiff, v. BRINKERHOFF MARITIME DRILLING, a corporation, et al., Defendants.

Timothy P. JONES, Plaintiff, v. BRINKERHOFF MARITIME DRILLING, a corporation, et al., Defendants.

David Alfred LOWRY, Plaintiff, v. BRINKERHOFF MARITIME DRILLING, a corporation, et al., Defendants.

David S. SCHWARTZ, as Administratrix of the Estate of James C. Owen, Plaintiff, v. BRINKERHOFF MARITIME DRILLING, a corporation, et al., Defendants.

Murray Robert COLE, Plaintiff, v. BRINKERHOFF MARITIME DRILLING, a corporation, et al., Defendants.

Shereen Ramona ZIPFEL, Individually and as Administratrix of the Estate of Ian Charles Zipfel, deceased, Plaintiff, v. HALLIBURTON CO., et al., Defendants.

Ten Fong CRAIG, Individually and as Administratrix of the Estate of William Henry Craig, deceased, Plaintiff, v. ATLANTIC RICHFIELD CO., et al., Defendants.

CHAN LUCK CHEE, Plaintiff, v. McCLELLAND ENGINEERS, INC., et al., Defendants.

Patrick Paul GRUNKE, Plaintiff, v. ATLANTIC RICHFIELD CO., et al., Defendants.

Vyner Gerard ALBUQUERQUE, Plaintiff, v. OCEANEERING INTERNATIONAL, INC., et al., Defendants.

Michael Wayne CRAIG, Plaintiff, v. BRINKERHOFF MARITIME DRILLING, et al., Defendants.

Nos. C-82-0836-WWS, C-82-2565-WWS, C-82-2566-WWS, C-82-2568-WWS, C-82-2569-WWS, C-83-0603-WWS to C-83-0607-WWS and C-83-1022-WWS.

United States District Court, N.D. California.

August 9, 1985.

COPYRIGHT MATERIAL OMITTED

John A. Waner, Waner, Beaman & Boyer, Santa Rosa, Cal., Frank M. Staggs, Jr., O'Quinn & Hagens, Houston, Tex., Lyle C. Cavin, Jr., San Francisco, Cal., Benton Musslewhite, Harold Eisenmann, Schechter, Eisenmann & Solar, John P. Forney, Eastman, Watson, Dale & Forney, Houston, Tex., Joel F. Citron, Santa Monica, Cal., Robert R. Catalano, Catalano & Gates, San Jose, Cal., for plaintiffs.

Ernest N. Reddick, Derby, Cook, Quinby & Tweedt, Graydon S. Staring, Lillick, McHose & Charles, Harold A. Stone, Gudmundson, Siggins & Stone, Vernon L. Goodin, Bronson, Bronson & McKinnon, Robert J. Finan, Finan, White & Morrison, San Francisco, Cal., James M. Derr, Belcher, Henzie, Biegenzahn & Walker, Los Angeles, Cal., William H. Westover, Morris Davidovitz, Fisher & Hurst, San Francisco, Cal., for defendants.

MEMORANDUM OF OPINION AND ORDER

SCHWARZER, District Judge.

Before the Court are eleven actions brought by or on behalf of seamen who were killed or injured in an air crash in Indonesia. These actions were related pursuant to Local Rule 205-2 for assignment to a single judge; they have, however, not been consolidated. Pursuant to the court's assignment plan they were later reassigned from that judge to the undersigned.

Prior to the reassignment, defendants filed motions to dismiss for forum non conveniens. The motions were denied by another judge of this court. Following reassignment, defendants renewed their motions. The Court granted those motions by order of June 10, 1985, but on reconsideration vacated its order on July 25, 1985. The motions are now before the Court for renewed consideration and decision.

I. FACTS

The facts material to the disposition of these motions are undisputed and are briefly summarized below.

On April 28, 1981, an aircraft operated by P.T. Airfast Services ("Airfast"), an Indonesian corporation, crashed on approach for landing at Simpang Tiga Airport, Pekanbaru, North Sumatra, Indonesia. The aircraft had been chartered by Hudbay Oil (Malacca Strait) Limited ("Hudbay") to transport employees of Brinkerhoff Maritime Drilling Corporation ("BMD") between Singapore and Pekanbura, Sumatra. From the airport at Pekanbaru, the passengers were to be transported by helicopter to the drilling barge Brinkerhoff I, then operating in the Straits of Malacca in Indonesian waters.

The Brinkerhoff I is an American flag drilling barge, registered in San Francisco, California, owned by BMD, a Delaware corporation with its home office in San Francisco. In October 1979, BMD entered into a Day-Work Drilling Contract with Atlantic Richfield Indonesia, Inc., ("ARII"), negotiated in Indonesia. Pursuant to this contract, BMD agreed to furnish and operate the Brinkerhoff I in areas of operations designated by ARII. In February, 1981, ARII directed BMD to move the barge to a lease concession operated by Hudbay. ARII and Hudbay executed an agreement for use of the barge in March, 1981, governing the drilling services to be performed by her on Hudbay's lease concession. Essentially, that agreement provided that BMD would perform drilling operations for Hudbay as instructed by ARII.

The crew of the Brinkerhoff I lived on board the vessel and rotated their time on and time off in two-week increments. They were shuttled between Indonesia and Singapore in the Airfast aircraft chartered by Hudbay under its contract with ARII. The crash occurred as members of the crew were returning to Indonesia enroute to the drilling barge. At the time of the crash, the aircraft was in contact with Indonesian air traffic controllers at Simpang Tiga Airport. Indonesian authorities subsequently investigated the crash and issued a report attributing it to pilot error and weather conditions. The crew and five of the thirteen passengers on the plane died in the crash; others were injured.

These actions are brought by or on behalf of ten of the passengers, all of whom were employed on the Brinkerhoff I at the time. All are brought under the Jones Act, 46 U.S.C. § 688, and most also allege claims under general maritime and California common law.

Four of the actions are brought on behalf of three American seamen:

C-82-0836: brought on behalf of Max Sherill, a United States citizen and resident of New Mexico at the time of his death in the accident, by the administratrix of his estate, also a United States citizen and resident of New Mexico.

C-82-2568: brought on behalf of James Owen, a United States citizen and resident of Minnesota at the time of his death in the accident, by the administratrix of his estate.

C-83-0604: brought on behalf of Wm. Henry Craig, a United States citizen and resident of California at the time of his death in the accident, by Ten Fong Craig, as administratrix of his estate.

C-83-1022: brought on behalf of Wm. Henry Craig, by his executor and heirs, United States citizens and residents of California.

The remaining actions are all brought by or on behalf of seamen none of whom was a citizen or resident of the United States:

C-82-2565: brought by Timothy Peter Jones, a British subject residing in Britain.

C-82-2566: brought by David Lowry, a citizen of Canada residing in Canada or Singapore.

C-82-2569: brought by Murray Robert Cole, a citizen of New Zealand residing in the Phillipines.

C-83-0603: brought by Shereen Zipfel, a citizen of Singapore, as administratrix of the estate of Ian Charles Zipfel, a British subject then residing in Britain or Singapore.

C-83-0605: brought by Chan Chuck Lee, a citizen and resident of Singapore.

C-83-0606: brought by Patrick Paul Grunke, a citizen and resident of Australia.

C-83-0607: brought by Vyner Gerard Albuquerque, a citizen and resident of Singapore.

II. RECONSIDERATION

The threshold question confronting the Court is whether to reconsider the prior denial of the motions by another judge. Plaintiffs argue that the denial is the law of the case and bars reconsideration. The Court is mindful of the institutional and policy considerations militating against reconsideration of an earlier ruling by a judge of the same court. As a rule "the various judges who sit in the same court should not attempt to overrule the decisions of each other...." Castner v. First National Bank of Anchorage, 278 F.2d 376, 379 (9th Cir.1960) (citing Shreve v. Cheesman, 69 F. 785, 791 (8th Cir.1895)). This rule is premised upon principles of comity and uniformity, and the need to preserve the orderly functioning of the judicial process. Castner, supra, 278 F.2d at 379-380. But it does not raise an absolute bar to reexamining questions previously determined. It is well established in this circuit that one district judge in a multi-judge court may modify or overrule an interlocutory order of another judge sitting in the same case for "cogent reasons" or where "exceptional circumstances" are presented. Greyhound Computer Corp. v. IBM, 559 F.2d 488 (9th Cir.1977), cert. denied, 434 U.S. 1040, 98 S.Ct. 782, 54 L.Ed.2d 790 (1978); United States v. Desert Gold Mining Co., 433 F.2d 713 (9th Cir.1970); Tanner Motor Livery, Ltd. v. Avis, Inc., 316 F.2d 804 (9th Cir.), cert. denied, 375 U.S. 821, 84 S.Ct. 59, 11 L.Ed.2d 55 (1963); Castner, supra. Thus it makes no difference whether the interlocutory order is reconsidered by the same judge or by a different judge to whom the case has been reassigned. United States v. Desert Gold Mining Co., 433 F.2d 713, 715 (9th Cir.1970).

In the prior order denying the motions, filed October 14, 1983, the court stated the issue to be "whether it should retain these cases and try them under the Jones Act, or whether plaintiffs should be remitted to appropriate proceedings elsewhere." (Order p. 1023) It then analyzed and discussed at some length the issue whether plaintiffs could maintain a claim under the Jones Act. The court concluded that "American law applies to all actions, and retained jurisdiction." It went on to add: "The Court does no more at this time than decide the choice-of-law question." (p. 1025) The motions to dismiss for forum non conveniens were, however, denied without further discussion. By order filed January 16, 1984, the court, pursuant to 28 U.S.C. § 1292(b), certified for an interlocutory appeal only this question: "What law, United States law (i.e. the Jones Act), or foreign law, applies to this matter." After further proceedings in which the court made certain additional findings (by order filed October 29, 1984), the court of appeals denied the petition for an...