Vaz Borralho v. Keydril Co.

• Citation: 710 F.2d 207
• Decision Date: 25 July 1983
• Docket Number: No. 81-2436,81-2436
• Parties: Maria Arlete VAZ BORRALHO, et al., Plaintiffs-Appellants, v. KEYDRIL COMPANY, Key International Drilling Company, Ltd. and Key Perfuracoes Maritimas, Ltda., Defendants-Appellees.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 207

710 F.2d 207

1984 A.M.C. 750

Maria Arlete VAZ BORRALHO, et al., Plaintiffs-Appellants, v. KEYDRIL COMPANY, Key International Drilling Company, Ltd. and Key Perfuracoes Maritimas, Ltda., Defendants-Appellees.

No. 81-2436.

United States Court of Appeals Fifth Circuit.

July 25, 1983.

Benton Musslewhite, Robert A. Chaffin, Houston, Tex., for plaintiffs-appellants.

Ted C. Litton, Houston, Tex., for defendants-appellees.

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

ON PETITION FOR REHEARING AND SUGGESTION FOR REHEARING EN BANC

(Opinion January 27, 1983, 5th Cir., 696 F.2d 379)

Before RUBIN, JOHNSON and GARWOOD, Circuit Judges.

GARWOOD, Circuit Judge:

The Petition for Rehearing is DENIED for the reasons set forth below, and because no member of this panel nor judge in regular active service on the Court has requested that the Court be polled on rehearing en banc, the Suggestion for Rehearing En Banc is DENIED.

In their Petition for Rehearing, appellants urge that our affirmance of the district court's choice of law determination improperly rested on our acceptance of its resolution of disputed factual issues. However, as we noted in our original opinion, even if the choice of law determination is to be made under standards similar to those applicable to motions for summary judgment, affirmance of the district court's ruling that American law was inapplicable would nonetheless be required on the basis of the primary facts about which there was no real dispute. 696 F.2d 379 at 388-89. We assumed, for purposes of our opinion that the KEY WEST's long-term, primary base of operations was American, as was its ultimate ownership and control and that of the other entities concerned. But these assumptions did not change, or obviate the significance of, the primary facts which were established without genuine dispute, as set out in our opinion, 696 F.2d at 387-89, including, for example, the fact that the formation and status of Borralho's employer as a Brazilian entity was required by the Brazilian national oil company as a condition of its chartering of the KEY WEST. As we observed in a similar connection in Bailey v. Dolphin International, Inc., 697 F.2d 1268, 1276 n. 23 (5th Cir.1983), "... the controlling primary facts were essentially undisputed, the material questions being as to their legal significance." (Emphasis added.)

With respect to the issues addressed in our original opinion, we also call attention to the recent opinion of another panel of this Court in De Oliveira v. Delta Marine Drilling Co., 707 F.2d 843 (5th Cir.1983).

Appellants also urge several contentions not addressed in our original opinion.

First, they point to the 1982 amendment to the Jones Act, which appellants say "codifies" the "rig cases doctrine" of the decisions in Chiazor v. Transworld Drilling Company, 648 F.2d 1015 (5th Cir.1981), cert. denied, 455 U.S. 1019, 102 S.Ct. 1714, 72 L.Ed.2d 136 (1982), and Phillips v. Amoco Trinidad Oil Company, 632 F.2d 82 (9th Cir.1980), cert. denied sub nom. Romilly v. Amoco Trinidad Oil Company, 451 U.S. 920, 101 S.Ct. 1999, 68 L.Ed.2d 312 (1981). ¹ Appellants contend that this legislation demonstrates that Congress understood Chiazor and Phillips were incorrect determinations of existing law, for else why would Congress think it necessary to amend the statute, particularly with a savings clause (see note 1, supra ), to bring it into conformity with Chiazor and Phillips. We reject this contention.

The Jones Act was last previously amended in 1920, and it is extremely doubtful that any overlap in congressional membership existed between 1920 and 1982. Thus, while subsequent congressional actions "should not be rejected out of hand as a source that a court may consider in the search for legislative intent," nevertheless we feel this case is a particularly apt one in which to apply the rule that such actions "must be weighed with extreme care" in light of the "sound admonition" that " 'the views of a subsequent Congress form a hazardous basis for inferring the intent of an earlier one.' " Andrus v. Shell Oil Co., 446 U.S. 657, 666 n. 8, 100 S.Ct. 1932, 1938 n. 8, 64 L.Ed.2d 593 (1980). We observe that there is nothing in the language of the 1982 enactment, or in its legislative history, which indicates disapproval of the Chiazor and Phillips rationale, either on grounds of public policy or as being contrary to the legislative intent embodied in the Jones Act as it existed before 1982. Indeed, the indication is one of approval.

Why, then, the savings clause? The obvious inference is that Congress considered that existing law in this regard was unsettled and unclear, and did not wish its clarifying enactment to be absolutely binding on those whose injuries had already occurred, no matter how remote their chances for recovery might be. As we specifically noted in our original opinion, 696 F.2d at 389, the view expressed in certain decisions of the Second Circuit, indicating that ultimate American ownership and control of the relevant vessel alone sufficed to mandate application of American law, was rejected by the Third Circuit in De Mateos v. Texaco, Inc., 562 F.2d 895, 902 n. 3 (3d Cir.1977), cert. denied, 435 U.S. 904, 98 S.Ct. 1449, 55 L.Ed.2d 494 (1978), and was inconsistent with Chiazor and Phillips (both of which cited De Mateos ), at least as applied to offshore drilling platforms at long-term, fixed locations in foreign territorial waters. All these decisions were rendered before 1982, and it is not illogical to assume that Congress was aware of them. We also observe that the 1982 amendment is somewhat broader than the rationale of Chiazor, which was to a significant extent grounded on the vessel's special nature and related relatively long-term, fixed location (in foreign territorial waters). The amendment, on the other hand, is not so limited, but instead seemingly applies on an industrywide basis regardless of the type of vessel (except for those constructed or adapted primarily to carry oil in bulk in the cargo spaces) and regardless of whether any of the relevant operations are of a fixed or long-term nature.

The legislative history of the 1982 Jones Act amendment is somewhat sparse and confusing. Nonetheless, our review of it indicates to us that Congress regarded the existing decisional law in this area as unclear and unsettled, and further felt that, so far as some decisions might be thought to allow recovery in circumstances similar to those at bar, such decisions were not in accord with the original intent of the Jones Act.

The 1982 amendment came about as a part of H.R. 3942, 97th Cong., 2d Sess. (1982), known as the Fisheries Amendments of 1982. While H.R. 3942 largely dealt with other matters, its section 503 consisted of the Jones Act amendment. Section 503 was in turn borrowed without substantial change from H.R. 4863, 97th Cong., 2d Sess. (1982), as it emerged from the House Committee on Merchant Marine and Fisheries. Except for a United States citizen manning requirement applicable to certain United States offshore supply vessels bound for foreign territorial waters, H.R. 4863 was exclusively concerned with the Jones Act amendment. See 128 Cong.Rec.H. 7,631 (daily ed. Sept. 28, 1982).

The report of the House Committee on Merchant Marine and Fisheries respecting H.R. 4863 (H.R.Rep. No. 97-863, 97th Cong., 2d Sess., 1982), contains the following statement:

"The courts have generally found that the substantive rights granted by the Jones Act do not extend to foreign nationals who lack sufficient contacts with the United States.... H.R. 4863 codifies this case law and clarifies that the substantive rights granted by the Jones Act do not extend to foreign offshore workers." ² (Id. at 7; emphasis added.)

When H.R. 4863 came to the floor of the House, the remarks of its sponsor there, Congressman Biaggi, included the following:

"In recent years, a substantial number of foreign offshore workers--injured while working in waters under the jurisdiction of a foreign nation--have commenced lawsuits against U.S. companies in our courts based on the theory that they are seamen covered under the Jones Act and other maritime laws.

"Most court decisions have held that a foreign offshore worker injured on a foreign Continental Shelf should not bring his action in a U.S. court --unless he lacks a remedy in the host nation or his home nation. H.R. 4863 will codify this judicial precedent.

"I emphasize that this legislation does not usurp a legitimate court perogative. But, rather, it codifies the precedents already established by the courts." 128 Cong.Rec.H. 7,632 (daily ed. Sept. 28, 1982) (emphasis added).

Congressman Snyder, the next to speak in favor of H.R. 4863, stated, inter alia:

"In recent years there has been a substantial number of cases instituted in the United States involving injuries sustained in foreign waters which appear to have little or no relationship with the United States. However, some courts have held that mere U.S. corporate ownership of a drilling activity may be enough to permit a lawsuit by a foreign seaman to proceed. Consequently, there has been an uncertain and confusing case law development regarding the offshore industry. H.R. 4863 is an attempt to establish a uniform approach to considering suits brought by foreign workers injured over the Outer Continental Shelf of a foreign nation." Id. (emphasis added).

Thereafter, the provisions of H.R. 4863 dealing with the Jones Act (sections 1 and 2 of H.R. 4863) were incorporated, without substantial change, into H.R. 3942, as its section 503. See 128 Cong.Rec.H. 9,449-51 (daily ed. Dec. 10, 1982). Speaking in favor of H.R. 3942, Congressman Pritchard addressed the Jones Act amendment, stating "[s]ection 503 substantially incorporates the provisions of H.R. 4863," and continuing by repeating Congressman Snyder's above-quoted remarks concerning the ...