In a case arising under the Jones Act, mandamus relief was conditionally granted to an employer because a trial court should have dismissed a lawsuit under the doctrine of forum non conveniens based on the public and private factors set forth in Tex. Civ. Prac. & Rem. Code Ann. § 71.051(b) and under the case of Gulf Oil.
IN RE OMEGA PROTEIN, INC., Relator
COURT OF APPEALS OF TEXAS, FIRST DISTRICT, HOUSTON
2009 Tex. App. LEXIS 419
January 20, 2009, Issued
Relator employer filed a petition for a writ of mandamus to challenge a decision from the 189th Judicial District Court of Harris County, Texas, which denied its motion to dismiss real party in interest employee’s personal injury action under the Jones Act on the basis for forum non conveniens.
The parties entered into a maritime employment agreement, which included a forum selection clause. Later, the employee sued the employer in Texas for negligence and gross negligence. A motion to dismiss based on forum non conveniens was denied, and this petition for mandamus relief followed. In conditionally granting relief, the appellate court held that the trial court should have dismissed the case under Tex. Civ. Prac. & Rem. Code Ann. § 71.051(b) (2008) and the precedent handed down by the United States Supreme Court in Gulf Oil. All of the private-interest factors favored the forum of Virginia; the incident that was the basis of the suit occurred off the coast of Virginia, a vessel was located there, the employee lived there, most witnesses were located there, and medical treatment was received there. Moreover, compulsory process was unavailable to require the attendance of Virginia witnesses at a Texas trial. Most of the public factors also weighed in favor of dismissal. The presence of corporate headquarters in Texas was an insufficient reason for keeping the lawsuit in Texas. Finally, a substantial injustice would have occurred if the suit proceeded in a Texas court.
The petition was conditionally granted. The trial court was directed to dismiss the case based on forum non conveniens. The writ only issued if the trial court failed to comply. All pending motions were overruled as moot.
In a maritime wrongful death case in which conflicting expert testimony was presented as to whether a crab boat was upright and stopped when it was struck by a barge, the testimony of the survivors’ expert, which did not contradict the objective evidence in the record and was plausible on its face, supported the trial court’s findings of fact.
NGA TRINH, INDIVIDUALLY AND ON BEHALF OF HAO TRAN AND LYNN TRAN VERSUS DUFRENE BOATS, INC.
2008 CA 0824
COURT OF APPEAL OF LOUISIANA, FIRST CIRCUIT
January 22, 2009, Judgment Rendered
Defendant tugboat owner appealed a judgment from the Sixteenth Judicial District Court, Parish of St. Mary (Louisiana), which awarded pecuniary and nonpecuniary damages to plaintiff survivors in a maritime wrongful death case and taxed costs to the tugboat owner. The survivors cross-appealed the trial court’s allocation of fault and the amount of survival damages.
A barge being pushed by a tugboat struck the decedent’s crab boat, and the decedent drowned. Conflicting expert testimony was presented as to whether the crab boat was upright and stopped when it was struck by the barge. The trial court found the tugboat owner 60 percent at fault and the decedent 40 percent at fault. The court found that the testimony of the survivors’ expert, which did not contradict the objective evidence in the record and was plausible on its face, supported the trial court’s findings of fact. The trial court did not abuse its discretion under La. Code Civ. Proc. Ann. art. 1920 in taxing all of the costs to the tugboat owner. General maritime wrongful death law did not preclude the application of the Louisiana wrongful death statute, La. Civ. Code Ann. art. 2315.2, because Louisiana had a strong interest in applying its own law and no clearly applicable general maritime rule precluded it from doing so. The federal damages uniformity principle was not applicable. The trial court’s allocation of fault was consistent with the evidence. The survival award of $ 15,000 was not too low because there was no evidence that the decedent remained conscious after the impact.
The court affirmed the judgment of the trial court.
Injured worker was not entitled to a jury trial under Fed. R. Civ. P. 9(h) and 28 U.S.C.S. § 1333(1) for her in personam negligence action against vessel owners because worker invoked admiralty jurisdiction when she consolidated the in personam action with prior filed in rem actions, requiring all claims to be tried to the bench rather than a jury.
COOPER/T.SMITH STEVEDORING CO., INC. and THE AMERICAN EQUITY UNDERWRITERS INC. on behalf of AMERICAN LONGSHORE MUTUAL ASSOCIATION, Plaintiffs, v. THE M/V ALBERTA, ITS ENGINES, TACKLE, APPAREL, EQUIPMENT, FURNITURE, ACCESSORIES, APPURTENANCES, ETC., in rem, SAMOS SHIPPING CO LTD., in personam, and XYZ INSURANCE COS., Defendants. MELINDA LUERA v. SAMOS SHIPPING CO., LTD. and REESE DEVELOPMENT, INC. MELINDA LUERA v. THE M/V VOC ROSE, ITS ENGINES, TACKLE, APPAREL, EQUIPMENT, FURNITURE, ACCESSORIES, APPURTENANCES, ETC., in rem
CIVIL ACTION NO. H-07-2698Consolidated withCIVIL ACTION NO. H-07-2541Consolidated withCIVIL ACTION NO. H-07-3707
UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF TEXAS, HOUSTON DIVISION
2009 U.S. Dist. LEXIS 511
January 6, 2009, Filed
Plaintiffs, an injured worker, her employer, and its compensation carrier, brought in rem actions against defendants, two vessels and their owners and managers. The worker also brought an in personam action for negligence against the vessel owners. The worker consolidated the claims, and the owner of vessel one brought a motion requesting realignment of the parties and to confirm that this consolidated action was before the court in admiralty.
The worker argued that by bringing a separate suit against the owners in personam, she preserved her jury trial right against the owners under Fed. R. Civ. P. 9(h) and 38 and 28 U.S.C.S. § 1333(1) and that her right to a jury trial extended to the in rem vessel defendants. The court realigned the parties and concluded that admiralty jurisdiction was invoked. When plaintiffs invoked the benefits of in rem jurisdiction, they gave up, in exchange, their ability to try their case to a jury. The consolidated action awaiting trial was substantively the same as if the worker had initially filed her in personam claims against the owners in the original case brought in rem to seize one of the vessels. This principle could not be circumvented by filing in personam claims under a separate case number and then moving to consolidate them with the in rem cases for a single trial with a single fact finder. The consolidated action in admiralty was based on one event, causing one set of injuries to one victim. The case involved the worker as the one true plaintiff and the employer and carrier bringing subrogation claims. The true defendants in personam were the owners and managers of the vessels.
The motion to realign the parties and to unify the pleadings brought by the owner of vessel one was granted and established the worker as the sole true plaintiff with her employer and its compensation carrier asserting subrogation claims. True defendants in rem were the vessel owners and managers of both vessels. The court determined that all claims were before the court in admiralty, with all claims to be tried to the bench.
Jones Act, 46 U.S.C.S. §§ 30104-30105, case should have been remanded, as district court erred by disregarding plaintiff’s affidavit rather than construing disputed facts in his favor and by misapplying Chandris analysis by analyzing exception for reassigned employees without first determining if general 30-percent rule was satisfied.
ARMANDO ZERTUCHE, Plaintiff – Appellant v. GREAT LAKES DREDGE & DOCK COMPANY, LLC, Defendant – Appellee
UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT
2009 U.S. App. LEXIS 144
January 6, 2009, Filed
Plaintiff appealed orders of the United States District Court for the Southern District of Texas denying his motion to remand and granting defendant’s motion for summary judgment on his claim brought under the Jones Act, 46 U.S.C.S. §§ 30104-30105. Plaintiff originally filed this suit in the 381st Judicial District of Starr County, Texas.
Defendant conceded that plaintiff satisfied the first requirement to qualify as a seaman under the Jones Act. Thus, only the issue of substantial connection to a vessel in navigation was in dispute. In its order denying the motion to remand, the district court stated that the central issue was whether plaintiff’s status as a temporarily assigned deckhand on a dredge established the second prong of the Chandris analysis. This was not the issue before the district court on the motion to remand; instead, it should have asked whether plaintiff’s total employment with defendant satisfied the general 30-percent rule. The district court erred by (1) disregarding plaintiff’s affidavit rather than construing the disputed facts in his favor and (2) misapplying Chandris by analyzing the exception for reassigned employees without first determining if the general 30-percent rule was satisfied. In opposing removal, plaintiff was entitled to rely upon the allegations in his affidavit. Defendant did not submit any employment records, which were already in its control, to refute plaintiff’s allegation that he spent 50 percent of his employment working as a deckhand.
The instant court reversed and remanded this case to the district court with instructions to remand to the state court.
Vessel owners could not seek contribution of a settled tort claim against another vessel owner even though the second vessel might have caused or contributed to an allision of the first vessel with a port because the port assigned only the tort claim and the assignment was invalid under maritime law under the proportionate liability framework.
ONDIMAR TRANSPORTES MARITIMOS; LTDA AND IBAIZABAL MANAGEMENT SERVICES SL, Plaintiffs – Appellants v. BEATTY STREET PROPERTIES, INC., IN PERSONAM; M/V BAYOU CITY, HER ENGINES, MACHINERY, TACKLE AND APPURTENANCES, ETC., IN REM, Defendants – Appellees
UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT
2009 U.S. App. LEXIS 572
January 9, 2009, Filed
Plaintiff vessel owners appealed under 28 U.S.C.S. § 1292(a)(3) a grant of partial summary judgment by the United States District Court for the Southern District of Texas in favor of defendant vessel owners. The district court dismissed plaintiffs’ assigned tort claims against defendants in plaintiffs’ action to recover a settled claim either in contribution, indemnity, or by virtue of assignment.
Plaintiffs’ vessel had collided with a dock, and pursuant to 46 U.S.C.S. § 40501(f), plaintiffs settled with the port as to damage to the port property even though plaintiffs contended that defendants’ vessel was the cause of the collision when it disrupted plaintiffs’ communications with attending tugs. The district court dismissed the contribution and indemnity claims on the ground that general maritime law’s proportionate liability framework precluded such claims where defendants had not also been released in the settlement with the port. On review, the court affirmed the grant of summary judgment. The court adopted the rule for general maritime law that the assignment of tort claims from the port to plaintiffs to allow plaintiffs to bring claims against defendants was invalid. Although the port might have made its demand in part under the tariff under § 40501(f), the basis for the assigned claim was a maritime allision, a classic maritime tort, and such an assignment was invalid. Each party could be liable under Texas law only for his proportionate fault and neither could seek contribution from any other.
The court affirmed the district court’s grant of partial summary judgment.