Shereen Ramona ZIPFEL, Individually and as Administratrix of
Ian Charles Zipfel, deceased, Plaintiff-Appellant,
v.
HALLIBURTON COMPANY; Atlantic Richfield Company; Crowley
Maritime Corporation; Brinkerhoff Maritime Drilling, Inc.;
Continental Oil Company (Conoco, Inc.); Hudson Bay Oil &
Gas Company, Ltd.; Hudbay Oil, Ltd. (Indonesia);
Brinkerhoff Maritime Drilling, Ptd, Ltd.; Hudbay Oil
(Malacca), Ltd.; Dome Petroleum, Ltd.; Dome Petroleum
Corporation; Arco Oil and Gas Corporation; PT Airfast
Services Indonesia; and Exquisitor Helicopter Corporation,
Defendants-Appellees.
Ten Fong CRAIG, Individually and as Administratrix of the
Estate of William Henry Craig, deceased, Plaintiff-Appellant,
v.
ATLANTIC RICHFIELD COMPANY; Crowley Maritime Corporation;
Brinkerhoff Maritime Drilling, Inc.; Continental Oil
Company (Conoco, Inc.); Hudson Bay Oil & Gas Company, Ltd.;
Hudbay Oil, Ltd. (Indonesia); Brinkerhoff Maritime
Drilling, S.A.; Brinkerhoff Maritime Drilling, Pte, Ltd.;
Hudbay Oil (Malacca), Ltd.; Dome Petroleum Ltd.; Dome
Petroleum Corporation; PT Airfast Services Indonesia; and
Exquisitor Helicopter Corporation, Defendants- Appellees.
Vyner Gerard ALBUQUERQUE, Plaintiff-Appellant,
v.
OCEANEERING INTERNATIONAL, INC.; Oceaneering International,
SDN, BHD.; Halliburton Company; Atlantic Richfield
Company; Crowley Maritime Corporation, Brinkerhoff Maritime
Drilling, Inc.; Continental Oil Company (Conoco, Inc.);
Hudson Bay Oil & Gas Company, Ltd.; Hudbay Oil, Ltd.
(Indonesia); Brinkerhoff Maritime Drilling, PTE, Ltd.
Hudbay Oil (Malacca), Ltd.; Dome Petroleum, Ltd.; Dome
Petroleum Corporation; Arco Oil and Gas Corporation; PT
Airfast Services Indonesia; and Exquisitor Helicopter
Corporation, Defendants-Appellees.
Chan Luck CHEE, Plaintiff-Appellant,
v.
McCLELLAND ENGINEERS, INC.; McClelland Engineers, S.A.;
McClelland Engineers SDN. BHD.; Halliburton Company;
Atlantic Richfield Company; Crowley Maritime Corporation;
Brinkerhoff Maritime Drilling, Inc.; Continental Oil
Company (Conoco, Inc.); Hudson Bay Oil & Gas Company, Ltd.;
Hudbay Oil, Ltd. (Indonesia); Brinkerhoff Maritime
Drilling, S.A.; Brinkerhoff Maritime Drilling, PTE, Ltd.;
Dome Petroleum, Ltd.; Dome Petroleum Corporation; Arco Oil
and Gas Corporation; PT Airfast Services Indonesia; and
Exquisitor Helicopter Corporation, Defendants-Appellees.
Patrick Paul GRUNKE, Plaintiff-Appellant,
v.
ATLANTIC RICHFIELD COMPANY; Crowley Maritime Corporation;
Brinkerhoff Maritime Drilling, Inc.; Continental Oil
Company (Conoco, Inc.); Hudson Bay Oil & Gas Company, Ltd.;
Hudbay Oil, Ltd. (Indonesia); Brinkerhoff Maritime
Drilling, S.A.; Brinkerhoff Maritime Drilling PTE, Ltd.;
Hudbay Oil (Malacca), Ltd.; Dome Petroleum, Ltd.; Dome
Petroleum Corporation; Arco Oil and Gas Corporation; PT
Airfast Services Indonesia; and Exquisitor Helicopter
Corporation, Defendants-Appellees.
Nos. 86-1815, 86-1832, 86-1834 to 86-1836.
United States Court of Appeals,
Ninth Circuit.
Argued and Submitted Feb. 9, 1987.
Decided June 23, 1987.
As Amended Nov. 24, 1987 and Jan. 26, 1988.
Benton Musselwhite, Houston, Tex., for plaintiffs-appellants.
Earnest N. Reddick, San Francisco, Cal., for defendants-appellees Crowley Maritime Corp., Brinkerhoff Maritime Drilling Corp., Brinkerhoff Maritime Drilling Corp., S.A., and Brinkerhoff Maritime Drilling Corp. PTE, LTD.
Graydon S. Staring, San Francisco, Cal., for defendant-appellee Halliburton Co.
Steven M. Perl, San Francisco, Cal., for defendant-appellee McClelland Engineers, Inc.
Elliot L. Bien, San Francisco, Cal., for defendant-appellee Oceaneering Intern., Inc.
James M. Derr, Los Angeles, Cal., for defendants-appellees Atlantic Richfield Co. and Arco Oil & Gas Corp.
Robert J. Finan, San Francisco, Cal., for defendant-appellee Conoco, Inc.
Appeal from the United States District Court for the Northern District of California.
Before SCHROEDER, WIGGINS and THOMPSON, Circuit Judges.
AMENDED OPINION
DAVID R. THOMPSON, Circuit Judge.
These related but unconsolidated actions were filed in the United States District Court for the Northern District of California by or on behalf of American and foreign seamen who were killed or injured in an air crash in Indonesia. The actions were filed under the Jones Act, 46 U.S.C. Sec. 688, the Shipowners Liability (Sick and Injured Seamen) Convention of 1936, 54 Stat. 1693, general maritime law, and state law. Motions to dismiss the actions on the ground of forum non conveniens were filed and denied. Upon reconsideration, another judge of the same court granted the motions and dismissed all of the cases, subject to conditions. Sherrill v. Brinkerhoff Maritime Drilling,
We have jurisdiction under 28 U.S.C. Sec. 1291. We affirm the district court's dismissal of the foreign seamen's claims. We reverse the dismissal of the claim filed on behalf of the deceased American seaman. We vacate that part of the permanent injunction enjoining the foreign seamen from prosecuting their claims in state court. We modify and affirm the grant of the permanent injunction as it pertains to the claim filed on behalf of the American seaman.
FACTS AND PROCEEDINGS
The plaintiffs' claims arise out of a 1981 airplane crash at Simpang Tiga Airport in Indonesia. The airplane was operated by P.T. Airfast Services, an Indonesian corporation, and chartered by Hudbay Oil, an Indonesian subsidiary of a Canadian corporation. At the time of the crash, the airplane was transporting crew members of the oil drilling vessel, Brinkeroff I, from Singapore to Indonesia, where the crew members were to be flown by helicopter to the vessel. The Brinkerhoff I is an American flag vessel. For approximately nineteen months prior to the crash, this vessel had operated in Far Eastern waters near Indonesia and Singapore. As the district court observed:
It is not disputed that the operative facts on which liability and damages are premised occurred in Indonesia, and to a lesser extent, in Singapore. These include the maintenance and operation of the aircraft by Airfast, the chartering of the aircraft by Hudbay, and the actions of the crew and the Indonesian air traffic controllers. Eye witnesses and other knowledgeable persons are located there. Records and physical evidence relating to the operation and crash of the aircraft, the activities of the defendants, the injuries suffered by plaintiffs, and the post-accident investigation are also located there. It may be, as plaintiffs contend, that other evidence is scattered around the world, but none of it is shown to be located in this district. That the bulk of it is located in Singapore or Indonesia is demonstrated by plaintiffs' consolidated deposition notice ...
Sherrill,
The Brinkerhoff I is owned by Brinkerhoff Maritime Drilling Corporation ("BMD"), a Delaware corporation with home offices in San Francisco. BMD's base of corporate operations was San Francisco, California, and the Brinkerhoff I's base of operations was either Singapore or Indonesia, or both.1 The crew members whose claims are involved in this appeal were employees, respectively, of some of the defendants. BMD employed Grunke and decedent Craig; the district court found that Zipfel was employed by Halliburton Ltd., Chee by McClelland Engineers S.A., and Albuquerque by Oceaneering International, S.D.N. B.H.D., each a foreign subsidiary of defendants/appellees Halliburton Company, McClelland Engineers, Inc. and Oceaneering International, Inc., respectively. Decedent Craig was an American and his wife, plaintiff Ten Fong Craig, is Singaporean; decedent Zipfel was British and his wife, plaintiff Shereen Ramona Zipfel, is Singaporean; plaintiffs Chee and Albuquerque are Singaporean; and plaintiff Grunke is Australian.
The cases were originally assigned to District Judge Aguilar. The defendants moved to dismiss all of the actions on the ground of forum non conveniens. Judge Aguilar concluded that American law applied to all of the cases and denied the motions. The cases were subsequently reassigned to District Judge Schwarzer. The defendants renewed their forum non conveniens motions. Judge Schwarzer concluded that American law, and consequently the Jones Act, applied only to the claim of the American crew member, and foreign law applied to the claims of the foreign crew members. He then dismissed all of the cases on the ground of forum non conveniens, subject to conditions.2 The permanent injunction and final judgment of dismissal followed.
DISCUSSION
A. The District Court's Reconsideration of Previous Denial of Motion
We review for abuse of discretion a district judge's decision to reconsider an interlocutory order by another judge of the same court. Castner v. First National Bank,
Judge Schwarzer chose to reconsider Judge Aguilar's denial of the defendants' forum non conveniens motions because, in his view, Judge Aguilar had failed to consider relevant Supreme Court precedent, including the Supreme Court's decision in Piper Aircraft Co. v. Reyno,
B. The District Court's Forum Non Conveniens Dismissal Order
1. Standard of Review
We review for abuse of discretion a district court's dismissal of a case on the ground of forum non conveniens. Piper,
The forum non conveniens determination is committed to the sound discretion of the trial court. It may be reversed only when there has been a clear abuse of discretion; where the court has considered all relevant public and private interest factors, and where its balancing of these factors is reasonable, its decision deserves substantial deference.
Piper,
Before dismissing a case for forum non conveniens, a district court must first make a choice of law determination.3 Pereira,
2. Choice of Law
a. The "Seaman Status" Requirement
For the Jones Act to apply, "seaman" status must be established. Estate of Wenzel v. Seaward Marine Services, Inc.,
b. Analysis
The Supreme Court in Lauritzen v. Larsen,
(i) The "Drilling Vessel" Qualification
In cases involving typical "blue-water" vessels "plying international waters," the law of the flag is of "cardinal importance." Lauritzen,
In cases involving atypical vessels such as semi-submersible or floating oil drilling vessels, however, courts do not give the law of the flag controlling weight; rather, other factors are emphasized. Koke v. Phillips Petroleum Co.,
Plaintiffs argue that the drilling vessel qualification should not apply to the Brinkerhoff I because it was not a stationary drilling rig.5 Although Phillips involved a drilling rig which remained in one location for several years, the drilling rig analysis has been applied to vessels which do not remain in a single fixed location. In Koke,
While the Sedco/Phillips SS certainly has greater mobility than a fixed rig which may remain in place for several years, it was not, and was not designed to function as, a vessel "plying the seas" in the traditional sense. It is a semi-submersible platform that rests on columns attached to flotation chambers. Its movements occur within a specific and limited geographical area. Further, when travel over long distances is required, it is apparently towed to a location....
Id.
The district court found that the Brinkerhoff I was unable to move under its own power, had to be towed by other vessels when moved, and had remained for long periods of time prior to the accident at only a few drilling locations in the general vicinity of Indonesia. Sherrill,
(ii) Applying the Choice of Law Factors
The applicability of the Jones Act to the claim for the death of the American seaman was not disputed. Accordingly, the district court determined that the Jones Act applied to his claim. This determination is not challenged on appeal.6
In determining whether the Jones Act applies to the claims of the foreign seamen, the district court focused on the factors which receive greater weight in the drilling rig context. These factors point toward the application of foreign law to these claims. The place of the alleged wrongful act was Indonesia, the base of operations was Indonesia or, to a lesser extent, Singapore, and the employment contracts or other hiring arrangements were made in foreign locations. Moreover, the allegiance of the injured foreign seamen is foreign and a foreign forum is accessible to them. While other factors point toward application of American law (the law of the flag, the allegiance of the defendant shipowner, the corporate headquarters of the defendant shipowner, and the law of the forum), these factors are of lesser importance in a choice of law analysis where the vessel is a drilling rig as opposed to a typical blue-water vessel plying international waters. Koke,
3. Forum Non Conveniens Analysis
Having determined that foreign law applies to the claims of the foreign seamen, and it having been conceded that American law applies to the claim on behalf of the deceased American seaman, we now consider whether the district court erred in dismissing all of the claims for forum non conveniens. We consider separately the claims of the foreign seamen and the claim on behalf of the deceased American seaman.
a. The Foreign Seamen
i. Availability of an Alternative Forum
At the outset of any forum non conveniens inquiry, the court must determine whether there exists an alternative forum. Ordinarily, this requirement will be satisfied when the defendant is "amenable to process" in the other jurisdiction. [Gulf Oil Corp. v.] Gilbert, 330 U.S. [501,] 506-507 [
Piper,
The defendants bear the burden of proving the existence of an adequate alternative forum. Cheng v. Boeing Co.,
As to Indonesia, the defendants' affidavits and declarations established that Indonesian and foreign parties may submit to the jurisdiction of Indonesian courts by written consent; that under the Indonesian Civil Code, defendants may waive the statute of limitations; that the court can compel the attendance of witnesses; and that third party indemnity claims are permitted. These affidavits and declarations further showed that Indonesian courts would apply Indonesian law, and remedies would be available to the injured seamen and their survivors under Indonesia's Workmen's Compensation Law, under the Indonesian Civil Code for Negligence, under the Indonesian Carriage by Air Act, and under the Warsaw Convention.
The affidavits which the plaintiffs filed in the district court were insufficient to counter significantly the affidavits and declarations filed on behalf of the defendants. The plaintiffs, however, have now submitted supplemental affidavits which they ask us to consider for the first time on appeal. They contend these supplemental affidavits show that neither Singapore nor Indonesia is a satisfactory alternative forum. Normally, we will not permit the record on appeal to be supplemented with evidence not presented to the district court. Karmun v. Commissioner,
ii. Private and Public Interest Factors
We have determined that foreign law is applicable to the claims of the foreign seamen, and that satisfactory alternative fora exist for the resolution of these claims. We now consider, and balance, the private interest and public interest factors described by the Supreme Court in Gulf Oil Corp. v. Gilbert,
The private interest factors include: (1) relative ease of access to sources of proof; (2) availability of compulsory process for attendance of unwilling witnesses, and cost of obtaining attendance of willing witnesses; (3) possibility of viewing subject premises; (4) all other factors that render trial of the case expeditious and inexpensive. (citation omitted).
The public interest factors include: (1) administrative difficulties flowing from court congestion: (2) imposition of jury duty on the people of a community that has no relation to the litigation; (3) local interest in having localized controversies decided at home; (4) the interest in having a diversity case tried in a forum familiar with the law that governs the action; (5) the avoidance of unnecessary problems in conflicts of law. (citation omitted).
Pereira at 690.
(a) The Private Interest Factors
In applying the private interest factors to the foreign seamen's claims, the district court noted that access to the sources of proof clearly pointed to trial in Singapore or Indonesia. Most of the evidence and witnesses are located at or near the crash site in Indonesia or the airport in Singapore where the airplane was serviced and prepared for take-off.8 The district court further noted that none of the evidence or witnesses was located in California, and that none of the material witnesses was subject to compulsory process in the district court, whereas many were located in Indonesia and Singapore and would be subject to process in those courts. Although plaintiffs have agreed to stipulate that they will pay all the costs of bringing these witnesses to the United States, they cannot assure that the witnesses will be willing to make this journey. The district court also noted that it may not be able to acquire personal jurisdiction over potential third-party defendants such as Airfast and the government of Indonesia. The district court concluded that the balance of the private interest factors tips in favor of dismissing, for forum non conveniens, the foreign seamen's lawsuits. We agree.
(b) The Public Interest Factors
In its consideration of the public interest factors, the district court found that the foreign seamen's lawsuits lacked a significant connection with the district court forum; that California had no interest in the actions; that the lawsuits would impose a burden on the district court's docket and would impede the ability of local litigants to get their cases to trial; that it would be a burden to the people of the community to have to sit as jurors on the cases; and that the application of foreign law in a foreign forum would not be inconsistent with the convenience of the foreign seamen. These findings weigh in favor of dismissal of the claims.
We conclude that the district court did not abuse its discretion in dismissing the foreign seamen's lawsuits for forum non conveniens, subject to the conditions which the district court imposed. See Pereira,
b. The American Seaman's Claim
Were we to apply a forum non conveniens analysis to the claim on behalf of the deceased American seaman, we might well conclude that his claim should also be dismissed. There are, after all, the same alternative fora available for resolution of his claim. The remedies are not as attractive as the remedy under the Jones Act, but notwithstanding this disadvantage, there still is a remedy. See Piper,
Only the Second Circuit has taken a different view. See Cruz v. Maritime Co. of Philippines,
In any event, however, we find the decisions of the Fifth, Tenth and Eleventh Circuits which preclude dismissal of a Jones Act case for forum non conveniens to be persuasive. This view is buttressed by decisions of the Supreme Court in which the Court has commented upon the unavailability of forum non conveniens as a basis for dismissal of cases filed under the Federal Employers' Liability Act (FELA). In Gilbert, the Court stated: "It is true that in cases under the Federal Employers' Liability Act we have held that plaintiff's choice of a forum cannot be defeated on the basis of forum non conveniens."
Under this chapter an action may be brought in a district court of the United States, in the district court of the residence of the defendant, or in which the cause of action arose, or in which the defendant shall be doing business at the time of commencing the action.
45 U.S.C. Sec. 56.
The portion of the Jones Act which pertains to jurisdiction and venue provides:
Jurisdiction in [actions under the Jones Act] shall be under the court of the district in which the defendant employer resides or in which his principal office is located.
46 U.S.C. Sec. 688(a).
In view of the Supreme Court's comments as to the unavailability of the forum non conveniens doctrine in FELA cases, the degree of similarity between the specific venue provisions under the Jones Act and under the FELA, and the incorporation of the FELA into the Jones Act, we believe that the forum non conveniens doctrine should be unavailable as a ground for dismissal under the Jones Act as it is under the FELA. (Cf. La Seguridad v. Transytur Line,
C. The Injunction
When the district court dismissed the plaintiffs' lawsuits for forum non conveniens, the plaintiffs who did not settle their claims reactivated lawsuits they had previously filed in the Texas state court. In response to this, the district court enjoined the plaintiffs and their attorneys from "filing and/or prosecuting actions in the state courts of Texas or any other court in the United States ... arising out of the air crash on April 28, 1981...." We review the grant of this injunction for abuse of discretion. Golden v. Pacific Maritime Ass'n,
The Anti-Injunction Act provides that:
A court of the United States may not grant an injunction to stay proceedings in a state court except as expressly authorized by act of Congress or where necessary in aid of its jurisdiction or to protect or effectuate its judgment.
28 U.S.C. Sec. 2283.
This court strictly construes these three exceptions to the Anti-Injunction Act. Alton Box Board Co. v. Esprit de Corp.,
The first exception to the Anti-Injunction Act does not apply here, because there is no express statutory authorization for an injunction in this situation. The second exception applies to the American seaman's lawsuit, because, under our holding in this case, the district court will retain jurisdiction over that lawsuit. See Alton Box,
The third exception to the Anti-Injunction Act similarly does not support the district court's injunction. This court has held that a district court may grant an injunction to protect the res judicata effect of its judgment "where a federal litigant has prevailed on the merits, yet is threatened with burdensome and repetitious relitigation of the same issues in a multiplicity of actions." Golden,
The recent Fifth Circuit case of Exxon Corporation v. Chick Kam Choo,
The judgment permanently enjoined the plaintiff from prosecuting any action against the defendants in the courts of Texas or any other state, arising out of or related to the death of the plaintiff's husband on board ship in Singapore. The plaintiff did not appeal this judgment and it became final. She then attempted to pursue, against the defendants in the state court in Houston, Texas, the same claims she had filed against them in the federal district court in Houston. The defendants filed a new suit in federal court in Houston to enjoin the state proceeding. The district court granted a permanent injunction enjoining the state proceeding and sanctioned the plaintiff's attorneys for pursuing it.
The Fifth Circuit, with one member of the three-judge panel concurring and one dissenting, affirmed the judgment of the district court. What established the opinion as a majority opinion was the concurrence of Judge Clark. He pointed out that the plaintiff was simply bound by the earlier judgment which enjoined her from relitigating the case in state court; he did not concur in Judge Gee's forum non conveniens analysis. Exxon, therefore, is not a majority opinion on forum non conveniens and hence is not in conflict with our unanimous opinion in this case.
CONCLUSION
The district court did not abuse its discretion in reconsidering the earlier denial of the defendants' forum non conveniens motions. The district court correctly determined that foreign law applies to the claims of the foreign seamen, and it did not abuse its discretion in dismissing the foreign seamen's lawsuits for forum non conveniens. The district court did abuse its discretion in dismissing the lawsuit on behalf of the deceased American seaman, because the Jones Act applies to this claim. Nickol,
The injunction enjoining the foreign seamen from prosecuting their claims in state court is precluded by the Anti-Injunction Act. Accordingly, that portion of the injunction is vacated. Since the district court will be retaining the lawsuit filed on behalf of the deceased American seaman, however, that portion of the injunction enjoining the prosecution of the lawsuit on his behalf in any other court in the United States is appropriate but is modified to except prosecution in the United States District Court for the Northern District of California. The portion of the judgment granting the permanent injunction as to the claim for the deceased American seaman is affirmed as modified.
AFFIRMED IN PART, REVERSED IN PART, VACATED IN PART, MODIFIED AND REMANDED.
Notes
The specific location of the Brinkerhoff I's operations was determined by Atlantic Richfield Indonesia, Inc. ("ARII"), pursuant to a Day-Work Drilling Contract between BMD and ARII. Although plaintiffs make much of American choice of law and forum clauses in this contract, it is not relevant to this action that BMD and ARII agreed to resolve conflicts between themselves in America. See Bailey v. Dolphin International, Inc.,
The conditions of dismissal were that the defendants (1) submit to the foreign court's jurisdiction, (2) waive any statute of limitations defenses, (3) make witnesses available, (4) not object to use of discovery materials and (5) agree to satisfy any judgment entered against them
The Second Circuit has stated that a choice of law determination is not involved in a forum non conveniens analysis. Cruz v. Maritime Co. of Philippines,
The analysis for determining whether the Jones Act applies to these claims is also controlling on the issue whether to apply American maritime law. Romero v. International Terminal Operating Co.,
Between 1979 and February 1983, the Brinkerhoff I operated at the following locations:
June 1979 -Sept. 1979 South China Sea
Sept. 1979 -Nov. 1979 Singapore Harbor
Nov. 1979 -April 1981 Java Sea
April 1981 -June 1981 Malacca Straits
June 1981 To Singapore Harbor
for ten days of
repairs
June 1981 -Feb. 1983 Java Sea
The airplane crash out of which these cases arose occurred April 28, 1981.
That all the claims in this case arise out of one occurrence does not require the application of uniform law to the claims of plaintiffs of differing nationalities. In re Ocean Ranger Sinking Off Newfoundland on February 15, 1982,
The defendants request that sanctions be imposed against the plaintiffs for attempting to submit supplemental affidavits on appeal. The request is denied
Plaintiffs argue that a localized liability inquiry is not necessary because the cause of the crash was established as pilot error. Defendants have not admitted that pilot error was the sole cause of the plane crash, and suggest that some fault is attributable to Indonesian air traffic controllers
The Fifth Circuit has recently signaled its departure from this position. In re Air Crash Disaster Near New Orleans, La.,
Section 688(a) of the Jones Act provides in relevant part: "Any seaman who shall suffer personal injury in the course of his employment may, at his election, maintain an action for damages at law, with the right of trial by jury, and in such action all statutes of the United States modifying or extending the common-law right or remedy in cases of personal injury to railway employees shall apply." 46 U.S.C. Sec. 688(a)