Petition — Familia de Boom v. Arosa Mercantil, S. A.

Supreme Court brief1981

Ask Donna

What actually matters in this document.

Text

80-1322

Office -Supreme Court, U.S.

ie ee

No. FEB § 1961

Bh Sk te

IN THE

——= =

Supreme Court of the United States

OCTOBER TERM, 1980

MARIA EMILIA FAMILIA de BOOM, et al.,

Petitioners,

versus

AROSA MERCANTIL, S.A., et al.,

Respondents.

On Petition for Writ of Certiorari to the

United States Court of Appeals

For the Fifth Circuit

PETITION FOR CERTIORARI

Of Counsel: Counsel of Record for Petitioners:

David W. Robertson Paul H. Due’

Gravel, Robertson & Brady Due’, Dodson & deGravelles

711 Washington Street 442 Europe Street

Alexandria, Louisiana 71301 Baton Rouge, Louisiana 70802

(Area 318) 487-4501 (Area 504) 383-8851

SCOFIELDS QUALITY PRINTERS. P O BOX 53096. N O. LA 70153 - 504/822-1611

Il.

III.

IV.

QUESTIONS PRESENTED

Whether a United States District Court has suf-

ficient “jurisdiction to determine jurisdiction” to

enable it to enforce discovery orders directed to

jurisdictional issues.

Whether a United States District Court exercis-

ing its federal question or admiralty jurisdiction is

limited by personal jurisdiction concepts derived

from forum-state law and the Fourteenth

Amendment.

Whether the decision below, denying federal

court authority to enforce discovery orders

against defendants challenging personal jurisdic-

tion, conflicts with the deterrence policy set forth

in this Court’s decisions in National Hockey League v.

Metropolitan Hockey Club and Roadway Express v. Piper.

Whether denying a federal admiralty court the

power to enforce discovery orders against for-

eign shipowners challenging the court’s jurisdic-

tion conflicts with this Court’s decisions in Swift &

Co. Packers v. Compania Columbiana del Caribe and Hel-

lenic Lines v. Rhoditis.

Whether the principle of United States v. United Mine

Workers of America supports the validity of dis-

covery sanctions against defendants contesting

federal court jurisdiction.

LIST OF ALL PARTIES AS REQUIRED BY

SUPREME COURT RULE 21.1(b)

The undersigned counsel for Maria Emilia Familia

deBoom, et al, petitioners, certifies that the following

were the parties to the proceeding below.

Maria Emilia Familia de Boom, spouse of decedent

Hugo Boom Martinez, Individually as personal

representative of the Estate of Hugo Boom Marti-

nez and as natural tutrix of the minor children,

Candida Rosa Boom Familia, Narcisco Ulises Boom

Familia, Carlos Miguel Boom Familia and Miguel

Antonio Boom Familia, and Carlos Eusebico Boom

Familia; Alejandrina de Leon Garcia, Individually

and as personal representative of the estate of Luis

Felipe Astacio and as natural tutrix of the minor

child, Julia Cecilia Astacio; Ramonita Mendez as

natural tutrix of the minor child, Santa Bienve-

nida Mendez; Pastora Guillaudeaux, Individually

and as personal representative of the Estate of

Geronimo Encarnacion Figuereo, deceased, and as

natural tutrix of the minors, Virginia Cipriano En-

carnacion Guillaudeaux, Cayetano Miguel Encar-

nacion Guillaudeaux, Pablo Francisco Encarna-

cion Guillaudeaux and Aidonais de Jesus Encarna-

cion Guillaudeaux; Olga Hernandez, Individually

and as personal representative of the estate of

Ramon Antonio Carrasco Nolasco, deceased, and

as natural tutrix of the minors, Adalgisa Carras-

co, Xionara Carrasco, Miguelina Carrasco, July

ill

Carrasco, Francia Carrasco, Roberto Carrasco,

Carlitos Carrasco, Soraya Carrasco, Antonio

Ramon Carrasco and Ramon Antonio Carrasco;

Carmen Nolasco; Ercelina Marce.ino, Individually

and as personal representative of the estate of Jose’

Laluz Martino Sabino, deceased, and as natural

tutrix of the minors, Maria Margarita Marcelino,

Eduardo Marcelino, Alejandrina Marcelino, Por-

firio Marcelino and Jose Marcelino; and Maria

Sabino de Martino; Juana Mercedes, Individually

and as personal representative of the estate of

Roberto Cruz, deceased, and as natural tutrix of

the minors, Alodia Elsinidia Cruz Mercedes, Edy

Mercedes Cruz Mercedes, Angel Wilfredo Cruz

Mercedes, Joseline Mercedes Cruz Mercedes, Elsa

Yolanda Cruz Mercedes, Jose Roberto Cruz Mer-

cedes and the posthumous child of the decedent,

and Rosa Cruz; Fatima Augustina Monegro

Burgos Santana, spouse of the decedent Ramon

Santana Babi, Individually, and as natural tutrix of

the minor, Ramona Santana Monegro, and Vic-

toria Santana; Eusebia Astacio, as dependent

mother of the decedent, Luis Felipe Astacio; Orfe-

lina Maria Mercado Leazard, as surviving wife of

the decedent, Leon Leazard Chevalier, as per-

sonal representative of the estate of said dece-

dent, Miguelina Jocelin Leazard Mercado and Joce-

lin Miguelina Leazard Mercado; Freddys Ramon

Leazard Mercado, Juan Duff Leazard Mercado,

Mercedes Altagracia Leazard and Socrates Man-

uel Leazard Mercado, sue herein individuaily and

as dependent major children of the decedent, Leon

Leazard Chevalier; Altagracia Chevalier Leazard

as dependent mother of decedent, Leon Leazard

Chevalier, Rosa Maria Tavarez, as surviving wife

of decedent, Eduardo Tavarez Abreu, and natural

tutrix of the minor, Eduardina Tavarez Abreu; Joa-

quin Salador Facundo Melo, a member of the crew

of the S/S UKOLA at the time of her sinking.

— Plaintiffs-Appellees-Petitioners

Arosa Mercantil, S.A. and Inversiones Calmer, S.A.

— Defendants-Appellants-Respondents

David W. Robertson

Attorney for Plaintiffs-

Appellees-Petitioners

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED .........cccecccceees i

LIST OF ALL PARTIES AS REQUIRED BY

SUPREME COURT RULE 21.1(b) ............ ii

SME OP MEMEO ESD 2. cece csccccccccccccces Vv

TABLE OF AUTHORITIES ..........cccecceess vii

8 gL 6) n 2

EE cn ndaceevevecscccccceccccccceecss 2

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED ............. 02005: 2

STATEMENT OF THE CASE ...........+--+e ee: 3

can ensserenscessccsccseues 4

The Decision Below ......... cee eee eee eee eees 8

REASONS FOR GRANTING

ee awe cewccecescceesesscssscees Q

I. Certiorari Should Be Granted To Re-

solve A Conflict Among The Courts of

Appeals on Whether “Jurisdiction to

_ Determine Jurisdiction” Will Support

Discovery Sanctions Against De-

fendants Challenging Federal Court

ee 9

Il. Certiorari Should Be Granted To

Determine The Applicability of State-

Law and Fourteenth Amendment Per-

IT.

IV.

TABLE OF CONTENTS (Continued)

sonal Jurisdiction Concepts In Federal

Court Cases Arising Under Federal

Tee ee eee eee cae ee

Certiorari Should Be Granted To Re-

solve A Conflict Between the Deci-

sion Below and This Court’s Deci-

sions On The Deterrence Function of

Certiorari Should Be Granted To Re-

solve A Conflict Between The Deci-

sion Below and This Court’s Deci-

sions On “Jurisdiction To Determine

Jurisdiction” In Admiralty Cases. .....

Certiorari Should Be Granted To Re-

solve Conflict Among The Federal

Courts On The Meaning Of This

Court’s Decision In United States v.

United Mine Workers of America...

CONCLUSION

CERTIFICATE

tn ee fe ee Ce CF Cee CSO eee ee 8 @

APPENDIX A — Opinion Below

APPENDIX B — Denial of Rehearing in Court

Below

es ee ee ee ee ee

APPENDIX C — Text of Statutes and Con-

stitutional Provisions Involved

Page

c+ oe

Vii

TABLE OF CONTENTS (Continued)

APPENDIX D — Decrees and Orders of Trial

ee oR ee

APPENDIX E — Summary Chronology of

Discovery Proceedings in Trial Court

TABLE OF AUTHORITIES

Cases:

AFC Industries, Inc. v. E.E.O.C., 439 U.S. 1981, 99

Se Me RTE one da seen snd eedeseens ce>

Amoco Overseas v. Compagnie Nationale Algerienne,

I &

605 F.2d 648 (2d Cir. 1979) ..........ce aes

Arrowsmith v. United Press International, 320 F.2d

ee Ce Re EOD hae eh ban cde eed +h ee oes

Blanco v. Carigulf Lines, 632 F.2d 656 (Sth Cir.

SE LUG Ada HA Sek Oia one ea eS Oe Oo

Braman v. Mary Hitchcock Mem. Hosp., 631 F.2d 6

ee ee each aan eearnes

Briggs v. Goodwin, 569 F.2d 1 (D.C. Cir. 1977),

rev. on other grounds sub nom., Stafford v.

Briggs, 100 S.Ct. 774 (U.S. 1980) .......65.

Communications Equipment v. Municipality of

Anchorage, 498 F.Supp. 632 (iV.D. Ala. 1980)

Davis v. Asano Bussan Co., 212 F.2d 558 (Sth Cir.

Sere ee rT eee re ee eee ee

a eo fe

_ '

Scie

Vill

TABLE OF AUTHORITIES (Continued)

Page

Driver v. Helms, 577 F.2d 147 (1st Cir. 1978), re-

versed on other grounds sub nom., Stafford v.

Briggs, 100 S.Ct. 774 (U.S. 1980) ........ 000s 16

Edwards v. Gulf Mississippi Marine Corp., 449

F.Supp. 1363 (S.D. Tex. 1978) ........22 sees. 24

Engineering Equip. Co. v. S.S. Selene, 446 F.Supp.

a te a, Serer eer eee eee 23

English v. 21st Phoenix Corp., 590 F.2d 723 (8th

Cir. 1979) cert. den., 444 U.S. 832 (1979) .. 11-13

Erie R.R. Co. v. Tompkins, 304 U.S. 64 (1938) ... 15,19

Everly Aircraft Co. v. Killiam, 414 F.2d 591 (Sth

ee re eee ree eer 15

Fitzgerald v. Texaco, Inc., 521 F.2d 448 (2d Cir.

1975) cert. den., 423 U.S. 1052 (1976) ......... 10

Florida, State of v. Treasure Salvors, 621 F.2d 1340

oe fae PP Seere Teer er TT Eee 28,29

Fraley v. Chesapeake & Ohio Ry. Co., 397 F.2d 1 (3d

3 ee ee ee ee eee 8

GAF Corp. v. Barclay Bros., Inc., 497 F.Supp. 539

BE eee rer rer eee eee ee 16

Gkiafis v. Steamship Yiosonas, 342 F.2d 546 (4th

Be, OE css b ahn6o6 aka oO 6 oO 08s 660 O88 88 23

Goldlawr, Inc. v. Heiman, 369 U.S. 463 (1962) ...... 28

TABLE OF AUTHORITIES (Continued)

Grammenos v. Lemos, 457 F.2d 1067 (2d Cir. -

1972)... 006:000 0s eg S ins 0s 13

Grand Bahama Pet. Co. v. Canadian Transp., 450

F.Supp. 447 (W.D. Wash. 1978) .............. 23

Granite & Quartzite Centre, Inc. v. M/S Virma, 374

F.Supp. 1124 (S.D. Ga. 1974) ....... cece eee 23

Great Western United Corp. v. Kidwell, 577 F.2d

1256 (Sth Cie. 3970) (opus eee ean ss «-. 18,20

Hall, United States v., 472 F.2d 261 (Sth Cir. 1972).. 28

Haskins v. Lister, 626 F.2d 42 (8th Cir. 1980) ...... 14

Hellenic Lines Limited v. Rhoditis, 398 U.S. 306

(1970) «0. 'sse:s alsin . .1,25-27

Holland, United States v., 552 F.2d 667 (Sth Cir.

1977) 2.0000 c06e we ea 6 a 5 30

Honeywell, Inc. v. Metz Apparatewerke, 509 F.2d

1137 (7th Cir. 1993) ccna ees os 15-16

International Shoe v. Washington, 326 U.S. 310

(1945) ... 000000 ou EIIE Ss a ise 6 16

Kane v. Union of Soviet Socialist Republics, 394 F.2d

131 (3d Cir. 1968) se aeeeea s,s... 23

Lambert v. Conrad, 536 F.2d 1183 (7th Cir.

1976) 2... 6ccccuc ue bass. 28

Leasco Data Processing Equip. Co. vr. Maxwell, 468

F.2d 1326 (2d Cie. Pipe eees ees... 16

TABLE OF AUTHORITIES (Continued)

Page

Lekkas v. Liberian M/V Caledonia, 443 F.2d 10(4th

Rae. See 2h ckeseacasecsseesce lee 10-12

Lerov v. Great Western United Corp., 99 S.Ct. 2710

UR eo See ey any Ce art ner ares 18,19

Long v. Vessel “Miss Ida Ann”, 490 F.Supp. 210

Cees. SOG: ROP kkkeeeducann sue bahes ane aoce 24

Mackensworth v. American Trading Transp. Co., 367

F.Supp. 373 (E.D. Pa. 1973) .........000 05. 23,24

Mariash v. Morrill, 496 F.2d 1138 (2d Cir. 1974) ...

Marquest Medical Products, Inc. v. EMDE Corp., 496

F.Supp. 1242 (D. Col. 1980) ................. 12

Mitsubishi Shoji Kaisha Ltd. v. M/S Galina, 323

F.Supp. 79 (5.0. Ten. BOF oacid ds weave veuas 24

National Hockey League v. Metropolitan Hockey Club,

Inc., 427 U.S. 639 (1976) ........ cc ee eae Wey fe:

Navarro v. Sedco, Inc., 449 F.Supp. 1355 (S.D.

SOR. FOE. 46.006ceaknaeeeee eee 20,24

Nestor v. Hershev, 425 F.2d 504 (D.C. Cir.

i ry re Oe

Red River Transport v. Custom Airmotive, Inc., 497

F.Supp. 425 (D.N.D. 1980) .................. 15

Roadway Express, Inc. v. Piper, 100 S.Ct. 2455

ROE cweutccokiseeand sees tesa 1,22

Shaffer v. Heitner, 433 U.S. 186 (1977) ............ 23

TABLE OF AUTHORITIES (Continued)

Page

Sprow Dv. Hartford Ins. ts. 594 F.2d 412 (Sth

<i . g, PEeeT eee eer Pre Te Te eee re ere ee re

Stafford v. Briggs, 100 S.Ct. 774 (U.S.

0 eS err ee eer rr Tee ee 16,18,19

Surpitski v. Hughes-Kennan Corp., 362 F.2d 254

ce | ee reer tr er ree 8

Swift & Co. Packers v. Compania Columbiana Del

Caribe, 239 U.S. O66 CISSG) sks ivivvcse 1,24,25,27

Thompson, United States v., 319 F.2d 665 (2d Cir.

Ce ee er rr Ne ee en Tree eee Tree Teer 27

United Mine Workers of America, United States v.,

Se isl sass ees i,27,29

Urquhart v. American-La France Foamite Corp., 144

F.2d 542 (D.C. Cir.), cert. den., 323 U.S. 783

a Be ek ee ea oe et ee een eo ean ¢ 8

Walker v. Armco Steel Corp., 100 S.Ct. 1978

ee ON 5 Seater vasa eeeeeeeter aes 21

Wells Fargo & Co. v. Wells Fargo Exp. Co., 556 F.2d

ee ae oe) ee ere ree 8,15,16

Zets v. Scott, 498 F.Supp. 884 (W.D.N. /.

errr re er rere Tere eee 12

xil

TABLE OF AUTHORITIES (Continued

Constitutional Provisions: Page

asc Greet, Fm, FY non cncncnnccccesces 2,16,18

ik ge OB eee rere 2°

U.S. Const., Amend. XIV .......... i,2,3,9,14,16,18

Statutes:

ee ee EE a eure Caen baetescucuedae 18

ee EE haw cteGhswnkens Ganeeucded 2

Be eee eT eee ee |

ee Ne UND Gi i vkacc Neds ccccwcecnxcds 17

Tex. Rev.Civ.Stat. §2031b .................. 3,6,14

SEN MEE 05a is ech wocmusideenskcwen 20

oo ke eS &

a 8 8 A reer Terre 6 er

IG I a ar Re ee a 6,13

RI TE od tee batwik se ated deeds) a 11

8 a! Bo ere

PO EE ies sacha cksusescnie 7-10,13,14

A. PUNENND oiviwb cc rcwanscustexs 11

ek ae. re |.

PINE, I el oes Sala . 4,7

ot Le yee ee Or eee: S

Xill

TABLE OF AUTHORITIES (Continued)

Treatises and Articles: Page

4A Moores’ Federal Practice € 37.02 [2-5] ....... 22

4 Moores’ Federal Practice § 26.56[6] .........-5. 8

4 Wright & Miller, Federal Practice and Pro-

eee BOTS 5. is cec ccc aseeran dd Cun eseee tees 15

13 Wright & Miller, Federal Practice & Pro-

rer er rr ie 10,27

15 Wright & Miller, Federal Practice and Pro-

Gedtare SOG27 onc ccc rccsccratencvesee esens 28

Epstein, et al, “An Update on Rule 37 Sanc-

tions After National Hockey League v.

Metropolitan Hockey Club, Inc.,” 84 F.R.D.

Oe a err ere rer

Kaplan, “Amendments of the Federal Rules of

Civil Procedure 1961-63(I)”, 77 Harv.L.Rev.

i 0) a ee ae ee ee ee ee oe 15

Seebruger, “The Federal Long-Arm: The Uses

of Diversity or ‘Tain’t So, McGee”, 40

Ind.L.Rev. 380 (1977) ...cccecceceeeeeee evens 15

Note, “The Emerging Deterrence Orienta-

tion in the Imposition of Discovery Sanc-

tions,” 91 Harv.L.Rev. 1033 (1978) .......+++. 22

No.

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1980

MARIA EMILIA FAMILIA DE BOOM et al.,

Petitioners,

versus

AROSA MERCANTIL, S.A. et al.,

Respondents.

On Petition for a Writ of Certiorari to

The United States Court of Appeals

For the Fifth Circuit

PETITION FOR CERTIORARI

To the Honorable, the Chief Justice and Associate Jus-

tices of the Supreme Court of the United States:

Maria Emilia Familia deBoom et al., the petitioners

herein, pray that a writ of certiorari issue to review the

judgment and opinion of the United States Court ot

Appeals for the Fifth Circuit entered in this matter on

November 7, 1980. That Court denied petitioners’

timely petition for rehearing and rehearing en banc on

December 17, 1980.

OPINIONS BELOW

The November 7, 1980, opinion of the Court of

Appeals, whose judgment is here sought to be review-

ed, is reported at 629 F.2d 1134, and is reprinted in the

attached Appendix “A” to this Petition, pp. 1a-13a. The

December 17, 1980, order of the Court of Appeals

denying petitioners’ petition for rehearing or rehear-

ing en banc is not reported; it is reprinted in the attach-

ed Appendix “B” to this Petition, pp. 13a-14a. The prior

decrees and orders of the United States District Court

for the Southern District of Texas (of March 8, 1978;

May 9, 1978; November 17, 1978; December 26, 1978;

and March 6, 1979) are unreported. They are set forth

in the attached Appendix “D” to this Petition at pp. 23a-

90a.

JURISDICTION

The judgment of the Court of Appeals was entered

on November 7, 1980. A petition for rehearing and re-

hearing en banc was denied on December 17, 1980. The

jurisdiction of this Court is invoked pursuant to 28

U.S.C. §1254(1).

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

The following constitutional and_ statutory

provisions are reproduced verbatim in the attached

Appendix “C” to this Petition, pp. 14a-22a.

U.S. Const., Amend. V

U.S. Const., Amend XIV, §1

Fed. R. Civ. P. 37(a)

Fed. R. Civ. P. 37(b)

Fed. R. Civ. P. 4(d)(7)

Fed. R. Civ. P. 4(e)

Tex. Rev. Civ. Stat. §2031b

STATEMENT OF THE CASE

Petitioners seek certiorari to review a decision and

opinion of the United States Court of Appeals for the

Fifth Circuit, which reversed a default judgment on the

issue of liability rendered in petitioners’ favor by the

United States District Court for the Southern District

of Texas. Jurisdiction in the district court was based on

28 U.S.C. §1333. The district court imposed the de-

fault judgment as a sanction pursuant to Fed.R.Civ.P.

37(b)(2)(C), after defendants, who appeared to contest

personal jurisdiction, repeatedly violated the court's

discovery orders. The Court of Appeals found that the

district court’s discovery orders were valid and that de-

fendants’ violations of those orders were “flagrant”

and “contumacious”, but nevertheless concluded that

the sanction imposed was invalid because of its view

that full proof of personal jurisdiction and service of

process under Texas law and the Fourteenth Amend-

ment were prerequisite to the validity of discovery

sanctions. Both the result and the reasoning of the

Court of Appeals raise important questions of federal

court jurisdiction and procedure.

The Facts!

This was a maritime personal injury and wrongful

death case, arising out of the sinking of the M/V

UKOLA. On January 19, 1977, that vessel, bound from

the Dominican Republic to Galveston, Texas, with a

cargo of sugar, sank approximately 200 miles west of

Key West, Florida, in the Gulf of Mexico. Vessel, cargo,

and 20 of 23 crew members were lost. Plaintiffs in this

action were a surviving crew member and the personal

representatives of a number of deceased crew mem-

bers. Defendants? were two Panamanian corporations

— Arosa Mercantil, S.A. (“Arosa”), the vessel’s owner,

and Inversiones Calmer, S.A. (“Inversiones”), the char-

terer? and operator of the vessel.

Arosa acquired ownership of the UKOLA on or

about June 18, 1976 (R. 157). She became a Panaman-

ian-flag vessel (id.). Arosa was a single-ship corpora-

tion, owning only this one vesel (R. 158). During all of

the time UKOLA was owned by Arosa the vessel was

1 References to the record in this Petition (“R. ___.”) are to the

record lodged in the Court of Appeals.

2 A third defendant, Farovi Shipping Company, was not in-

volved in the appeal to the Fifth Circuit and is not involved in the

present Petition. (The default judgment against the other twode-

fendants was made a final judgment by order of the district court

pursuant to Fed. R. Civ. P. 54(b), March 6, 1979. See Appendix “D”

to this Petition, pp. 88a-90a.

3 Defendants’ answers to interrogatories, R. 153, R. 175, do not

clarify the type of charter. Defendants’ memorandum supporting

their motion to dismiss states time charter at one place, R. 128,

bareboat charter at another, R. 133

chartered to Inversiones (R. 157). Arosa and Inver-

siones had the vessel for only seven months before the

sinking that gave rise to this lawsuit.

During the 29-month period immediately preceding

Arosa’s acquisition of the UKOLA, the vessel had made

at least six voyages to Texas ports (R. 159, 180). Dur-

ing the seven months of defendants’ control of the ves-

sel, she made at least seven voyages to United States

ports,4 at least two of them to Texas. In December,

1976, UKOLA’s owners appeared before the General

4 UKOLA’s relatively extensive contacts with the United States

during Arosa’s period of ownership are shown by Lloyd’s Regis-

ter materials made an appendix to petitioners’ Petition for Re-

hearing and Rehearing En Banc to the Fifth Circuit. Petitioners

are respectful of the normal practice prohibiting reference to facts

outside the record. However, under the highly unusual circum-

stances of the present case, petitioners respectfully request the

Court to consider the totality of the factual circumstances made

reasonably to appear in order to avoid doing serious injustice to

petitioners and leaving plaintiffs and trial courts generally in a

complete quandary as to the efficacy of discovery against defend-

ants whochoose to resist jurisdiction. It should be noted that there

was never any occasion for petitioners to make a jurisdictional rec-

ord because defendants’ maneuvers prevented the case from

reaching a stage at which a jurisdictional hearing could be had.

5 The record shows at least two voyages to Texas. (R. 128). The

panel opinion is mistaken in stating that only one was shown (629

F.2d at 1139). Defendants in a Memorandum in support of their

motion to dismiss the action conceded “previous voyages of the

M/V UKOLA to Texas,” (R. 133), “occasional and sporadic voy-

ages of the M/V UKOLA to Texas shores,” (R. 135), random calls

at state ports,” (id.), “calls made by the M/V UKOLA to Houston

and Galveston,” (R. 136), and “while more than one voyage is in-

volved in this case, the voyages [to Texas] were only occasional

and sporadic.” (R. 137).

Consul of Panama in New Orleans to renew and ex-

tend the vessel's registry (R. 63).

The present action was commenced on February 11,

1977. Both defendants were served with process pur-

suant to Fed.R.Civ.P. 4 andthe Texas “long-arm’ stat-

ute, Tex.Rev.Civ. Stat. §2031b (R. 11, 103, 107). [Cer-

tificates of the Texas Secretary of State showing com-

pliance with the procedures of the Texas statute were

appended to petitioners’ brief as Appellees in the Fifth

Circuit. For reasons that will appear herein, these cer-

tificates did not become part of the trialcourt record.|

After considerable delay, both defendants filed

motions to dismiss under Fed.R.Civ.P. 12(b), attacking

subject matter jurisdiction, jurisdiction over the per-

son, venue, and service of process. The trial court

determined that these motions could not be decided un-

til plaintiff had the opportunity for adequate discovery

of jurisdictional facts and issued appropriate orders

under Fed.R.Civ.P. 37(a) to effectuate that discovery.®

6 The trial court did not order the jurisdictional discovery with-

out basis for the belief that the requisite contacts could be shown.

At a September 14, 1977, hearing, the trial judge questioned plain-

tiffs’ counsel about probable jurisdictional contacts, and elicited

that counsel's preliminary investigation had indicated previous

voyages of UKOLA to Texas, an apparent agency relationship be-

tween the vessel’s owners and operators and Gulf Coast Shipping

Corporation of Houston, and that the equitable owners of the

Arosa corporation were permanent resident aliens in the United

States (1st Supp. Record, Vol. Il, Tr. of Hearing of September 14,

1977, pp. 10-11). Further colloquy on that subject occurred at a

May 9, 1978, hearing, with plaintiffs’ counsel informing the Court

that investigations suggested that Farovi Shipping Corporation of

Miami and an American citizen in Puerto Rico, Mr. San: Miguel,

When defendants repeatedly failed andrefused tocom-

ply with the court's discovery orders, plaintiffs moved

for sanctions under Fed.R.Civ.P. 37(b). Determining

that defendant's refusals to obey discovery orders were

inexcusable, the court imposed the Fed.R.Civ.P.

37(b)(2)(C) sanction of default judgment on the issue of

liability against defendants. The initial default was

“interlocutory”, giving defendants the opportunity to

come forward with the requested information. But

neither defendant ever made any effort at any time to

answer the interrogatories satisfactorily to the court.

Nor did either defendant offer any justification for the

repeated refusals to comply with the discovery orders.

The defendants’ jurisdictional motions never be-

came ripe for consideration by the trial court because

defendants never permitted the discovery deemed

necessary by the court for reasoned consideration of

those motions. Therefore, plaintiff had neither oc-

casion nor opportunity to make a record on those

issues.

After a full trial on the damages issues, in which de-

fendants fully participated, judgment was rendered for

plaintiffs and made final pursuant to Fed.R.Civ.P.

54(b). Defendants then appealed to the Fifth Circuit.

The details of the course of proceedings in the trial

court are important to understanding of the Fifth Cir-

had ownership interests of some kind in the vessel. (Ist Supp Rec-

ord, Vol. I, Tr. of Hearing of May 9, 1978, pp. 16-17). Plaintiffs

needed discovery to establish or negate those facts, and detend-

ants’ refusals to obey the court's discovery orders prevented that

discovery.

cuit’s decision. A summary chronology of those pro-

ceedings is made Appendix “E” to this Petition at pp.

90a to 98a.

The Decision Below

On defendants’ appeal from the default judgment

entered as a sanction under Fed.R.Civ.P. 37(b)(2)(C),

the Court of Appeals for the Fifth Circuit had no doubt

that the trial court’s discovery orders were valid, 629

F.2d at 1137.7 The Court also found that defendants’

violation of the court’s discovery orders had been

“flagrant” (id. at 1137 n. 4), and “contumacious” (id. at

1139); that plaintiffs had been prevented from proving

jurisdiction over the person (id. at 1138) and the ele-

ments of valid service of process under the Texas stat-

ute (id. at 1139) by defendants’ refusals to obey dis-

covery orders; and that the absence of sanctions

powers would leave the “district judge in a quandary in

trying to enforce his discovery order” (id.). Neverthe-

less, the Court held that the Fed.R.Civ.P. 37(b) sanc-

tion imposed was invalid because the court below lack-

ed jurisdiction sufficient to order such a sanction. The

opinion assumes that personal jurisdiction over defend-

7 Many cases support the proposition that, under identical cir-

cumstances, it would be error for the trial court to refuse to order

defendants tocomply with jurisdiction discovery. Blanco». Carigult

Lines, 632 F.2d 656, 658 (Sth Cir. 1980); Wells Fargo & Co. v. Wells

Fargo Exp. Co., 556 F.2d 406, 430-31 (9th Cir. 1977); Fraley >. Chesa

peake & Ohio Ry. Co., 397 F.2d 1, 3 (3d Cir. 1968); Surpitski 0. Hughes

Kennan Corp., 362 F.2d 254, 255-56 (1st Cir. 1966); Davis p. Asano

Bussan Co., 212 F.2d 558, 564-65 (Sth Cir. 1954); Urquhart v. Amert-

can-La France Foamite Corp., 144 F.2d 542, 544 (D.C. Cir.), cert. den

323 U.S. 783 (1944). See also 4 Moore’s Federal Practice,

¥ 26.56[6}.

ants was a requisite to the validity of the discovery

sanction:

The issues on appeal are: 1) whether the district

court had personal jurisdiction over the defend-

ants upon which to base the default judgment... .

629 F.2d at 1136.

The opinion does not discuss why the “jurisdiction to

determine jurisdiction” concept, deemed broad enough

to support the district court’s orders issued under Fed.

R.Civ.P. 37(a), was not broad enough to support

enforcement of those orders through appropriate sanc-

tions under Fed.R.Civ.P. 37(b). Concluding that plain-

tiffs — concededly because defendants evaded discov-

ery — had failed toshow minimum contacts with Texas

sufficient to satisfy Texas law and the due process re-

quirements of the 14th Amendment, the Court deter-

mined that the discovery sanction must fall:

This leaves the district judge in a quandary in try-

ing to enforce his discovery order, but that is a

necessary result of the limitations of sovereignty

under due process. 629 F.2d at 1139.

REASONS FOR GRANTING THE WRIT

I. Certiorari Should Be Granted to Resolve A

Conflict Among The Courts of Appeals On

Whether “Jurisdiction to Determine Jurisdic-

tion” Will Support Discovery Sanctions

Against Defendants Challenging Federal

Court Jurisdiction.

When the Court of Appeals in the present case deter-

mined that the district court’s “jurisdiction to deter-

mine jurisdiction’® (629 F.2d at 1137) was broad

enough for discovery orders under Rule 37(a) but not

broad enough for discovery sanctions under Rule 37(b),

it left “the district judge in a quandary in trying toen-

force his discovery order” (id. at 1139), put petitioners

in a genuine “Catch-22” situation,’ encouraged de-

fendants challenging federal court jurisdiction to re-

sist discovery, and placed itself in square conflict with

decisions of the Courts of Appeals for the Fourth and

Eighth Circuits.

Lekkas v. Liberian M/V Caledonia, 443 F.2d 10, 11 (4th

Cir. 1971), was a maritime personal injury suit in which

a Panamanian shipowner appeared in the United States

District Court to contest subject matter jurisdiction,

but refused to respond to discovery seeking informa-

tion on the jurisdictional issues raised. The district

8 On “jurisdiction to determine jurisdiction”, see generally 13

Wright & Miller, Federal Practice and Procedure §3536.

9 Under traditional reasoning and as pointed out by the Fifth

Circuit herein, plaintiff must prove personal jurisdiction when de-

fendant challenges it. However, that burden is not insuperable be-

cause discovery is available on the jurisdictional question raised

Yet the Fifth Circuit has determined that a defendant who resists

such discovery can not be subjected to sanctions ~~ ie, that dis-

covery orders can not be enforced — because personal jurisdic-

tion has not been proved. See Judge Oakes’ dissent in Fitzgerald v

Texaco, Inc., 521 F.2d 448, 455-50 n. 1 (2d Cir. 1975), cert. den. 423

U.S. 1052 (1976), terming a much less egregious limit on jurisdic-

tion discovery a “Catch-22 situation.” (At that point Judge Oukes

cited Lekkas v. Liberian M/V Caledonia, 443 F.2d 10 (4th Cir. 1971)

discussed infra.)

court granted defendant’s motion to dismiss for lack of

jurisdiction, and the Court of Appeal reversed,

emphasizing that the district court had the authority

and the duty to secure discovery, and that, if defend-

ants did not promptly produce the required informa-

tion, the court

should apply sanctions under Fed.R.Civ.P. 37, and

for the purposes of this case, take as established

that the shipis owned by Americaninterests; or, if

justice requires, the court should enter a default

judgment on the issue of liability.

The Fifth Circuit in the present case noted the exis-

tence of Lekkas as contrary authority, but without ex-

planation declined to follow it. 629 F.2d at 1139.

The Court of Appeals for the Eighth Circuit is also at

odds with the Fifth Circuit’s decision herein. In English

v. 21st Phoenix Corp., 590 F.2d 723 (8th Cir. 1979), cert.

den., 444 U.S. 832 (1979), plaintiffs brought a diversity

action in Nebraska against a Delaware corporation

allegedly liable as guarantor of plaintiffs’ rights under a

commercial lease. After defendant failed to comply

with discovery orders seeking jurisdictional informa-

tion, the district court ordered sanctions under Fed.R

Civ.P. 37(b)(2)(A), deeming personal jurisdiction estab-

lished and defendant responsible as guarantor on the

lease obligations. Thereafter the court entered sum-

mary judgment against defendant on the issue of lia-

bility. Answering defendant’s argument that the dis-

trict court was without jurisdiction to invoke the sanc-

tions, the Court of Appeals termed the argument

“meritless,” explaining:

Unlike subject matter jurisdiction, in personam

jurisdiction may be obtained by actions of a party

amounting to a waiver, and the court has jurisdic-

tion toenter an order finding a waiver. [Citations]

The same principles give jurisdiction to the Dis-

trict Court to enter a sanction order. It is estab-

lished beyond cavil that a court has jurisdiction to

determine jurisdiction, and a party cannot hope to

avoid the jurisdiction of a court by concealing evi-

dence regarding its activities in the forum state.

590 F.2d at 728 n. 5.

The Fifth Circuit opinion in the present case

acknowledged English as contrary authority, but dis-

tinguished it on the basis of language in the English

opinion (590 F.2d at 728 n. 6) indicating that the record

there would have supported a finding of personal juris-

diction,!° 629 F.2d at 1139. The purported distinction,

10 The Court also suggested that the English Court had found i

personam jurisdiction on the basis of “actions of a party amounting

to a waiver,” 629 F.2d at 1139, and implied it could find no waiver

here. This treatment of English will not bear scrutiny, for if one de-

fendant’s inexcusable refusal to comply with jurisdiction dis-

covery “waives” objections to personal jurisdiction so should an-

other's. Traditionally, “waiver” cases are those in which defend-

ant voluntarily appears and contests on the merits or otherwise

participates in the proceedings prior to raising the jurisdiction ob-

jection, See, e.g., Zets v. Scott, 498 F.Supp. 884, 886 (W.D. N.Y.

1980); Marquest Medical Products. Inc. v. EMDE Corp.. 496 F.Supp

1242, 1246 (D. Col. 1980), (When the English Court mentioned

waiver it cited to such situations.) None of the defendants in

English, Lekkas, or the present case made that kind of waiver. What

the above-quoted language from English says is that the present

situation is like or analogous to waiver cases, in that defendant wist

however, overlooks the clear import of the English

Court's “jurisdiction to determine jurisdiction” state-

ment, quoted above. Further, it ignores the fact that

the perceived deficiencies in the present jurisdictional

record were, in the Fifth Circuit’s own stated view,

entirely the product of defendants’ refusals to submit

to discovery.

While the narrow issue before the Fifth Circuit was

the validity of a default judgment entered as a sanction

under Fed.R.Civ.P. 37(b), the Court’s reasoning would

apparently foreclose the availability of any of the Rule

37(b) sanctions. The Court's language so indicated, 629

F.2d 1139 at headnote #9, and the Court did not distin-

guish English on the basis that it had involved a “lesser”

Rule 37(b) sanction, i.e., taking personal jurisdiction as

established, as it might well have done had it consider-

ed its reasoning limited to the default sanction. Nor

would that approach have answered the Fifth Circuit's

“sovereignty” objections; if “the limitations of sov

ereignty under due process” (629 F.2d at 1139) de-

ing to challenge the in personam jurisdiction of a federal court has a

choice. He may elect not to participate at all in the proceedings and

later attack the judgment or resist execution on jurisdictional

grounds. Alternatively, he may come into the proceedings to con

test jurisdiction by filing a Rule 12(b) motion to dismiss, as these

defendants did. Many cases have held that a defendant who

chooses the latter option has “submitted to an obligation to pro

vide information pertinent to the court's [jurisdictional] dec:

sion.” Grammenos v. Lemos. 457 F.2d 1067, 1070 (2d Cir. 1972) In

curring that obligation might be termed a“ waiver” of objections to

the court’s authority, but that reasoning does not help to answer

why some defendants who shirk the obligation are sanctionable

and others are not

mand the presence of personal jurisdiction contacts, it

is hard to see how deeming those contacts present

answers the situation. The decision below means there

can be no effective discovery on personal jurisdiction

issues. The result and reasoning puts the Fifth Circuit

at odds with the Fourth and Eighth,"! and certiorari

should be granted to resolve that conflict.

Il. Certiorari Should Be Granted To Determine

The Applicability Of State-Law and Four-

teenth Amendmert Personal Jurisdiction

Concepts In Federal Court Cases Arising

Under Federal Law.

The Fifth Circuit in the present case held that the

Rule 37(b) sanctioncould not be imposed because plain-

tiffs had not proved the personal jurisdiction and serv-

ice of process requirements flowing from the Texas

long-arm statute, Tex.Rev.Civ.Stat. art. 2031b, and

the Fourteenth Amendment. The opinion does not ex-

plain why a federal admiralty court should be thus re-

stricted by state law and limits on state sovereignty.

Petitioners will show that the Court was mistaken in

requiring Texas contacts in this admiralty case.

11 Another Eighth Circuit decision that may be squarely incon-

flict with the Fifth Circuit’s decision in the present case is Haskins 0.

Lister, 626 F.2d 42, 43 (8th Cir. 1980), which upheld default judg-

ment as a sanction for repeated refusals to comply with discovery

orders against defendants who had “continually evaded service by

the United States Marshal.” The opinion does not clarify whether

it was service of process that was evaded, or service of discovery

items

Federal courts in ordinary diversity cases are re-

stricted as to personal jurisdiction by the standards

applicable to state courts; these standards come from

the applicable state statutes and the Fourteenth

Amendment, and are imposed on diversity courts as a

consequence of Erie R.R. Co. v. Tompkins, 304 U.S. 64

(1938).12 Even as to diversity cases, thus limiting fed-

eral courts has beena hotly debated matter.'? All com-

mentators agree that whether diversity courts should

be so limited is a question of Erie policy, and that it is

certainly not constitutionally required that it be so.!4

In cases like the present one, in which federal court

jurisdiction is invoked to enforce rights created by fed-

eral law, there is universal agreement that nationwide

service of process and personal jurisdiction is constitu-

tionally permissible. Wells Fargo & Co. v. Wells Fargo Exp.

Co., 556 F.2d 406, 416-18 (9th Cir. 1977); Honeywell Inc. v.

12 Many cases make it clear that it is Erie that is the source of

those requirements in diversity cases. See, e.g., Eyerly Aircraft Co. p

Killian, 414 F.2d 591, 598, 603 (Sth Cir. 1969); Arrowsmith v. United

Press International, 320 F.2d 219, 222-31 (2d Cir. 1963); Communica-

tions Equipment v. Municipality of Anchorage, 498 F.Supp. 632, 633

(N.D. Ala. 1980); Red River Transport v. Custom Airmotive, Inc., 497

F.Supp. 425, 426 (D. N.D. 1980).

13 See, e.g., Judge Clark’s exhaustive dissent in Arrowsmith, 320

F.2d at 234-44; Kaplan, “Amendments of the Federal Rules of Civil

Procedure, 1961-63(I),” 77 Harv.L.Rev. 601, 631-32 (1964); See-

burger, “The Federal Long-Arm: The Uses of Diversity, or ‘Tain't

So, McGee”, 40 Ind.L.Rev. 380(1977); 4 Wright & Miller, Federal

Practice and Procedure §275, p. 302.

14 See Arrowsmith, supra, 320 F.2d at 226; Braman v. Mary Hitch

cock Mem. Hosp., 631 F.2d 6, 8(2d Cir. 1980); Sprowv Hartford Ins. Co

594 F.2d 412, 410 (Sth Cir. 1979).

Metz Apparatewerke, 509 F.2d 1137, 1143 (7th Cir. 1975);

Mariash v. Morrill, 496 F.2d 1138, 1143 (2d Cir. 1974).

The relevant constitutional standards come from the

Fifth, not the Fourteenth Amendment. The relevant

Fifth Amendment inquiry is whether defendant had

actual notice of the proceedings (which the present de-

fendants plainly had) and whether service was made

within the United States. Driver v. Helms, 577 F.2d 147,

157 (1st Cir. 1978), rev. on other grounds, 100 S.Ct.

774 (1980); Mariash v. Morrill, supra, 496 F.2d at 1143.

Some cases suggest an additional Fifth Amendment re-

quirement of “minimum contacts” with the United

States as a whole, at least in cases in which an alien de-

fendant is served outside the boundaries of the United

States.!5 See, e.g., Wells Fargo, supra, 556 F.2d at 416-18;

Mariash, supra, 496 F.2d at 1143; Leasco Data Processing

Equip. Co. v. Maxwell, 468 F.2d 1326, 1340 (2nd Cir.

1972).

That the decision below was wrong to apply state-

sovereignty limits is further shown by two very recent

decisions of this Court. In Stafford v. Briggs, 100 S.Ct. 774

(U.S. 1980), this Court rc versed decisions of the Court

of Appeals for the First! and District of Columbia!”

15 In GAF Corp. v. Barclay Bros., Inc., 497 F.Supp. 539, 540(D.N_J.

1980), a diversity court recently stated that International Shoe’s

“minimum contacts” requirements do not apply when service is

made within the boundaries of the forum state.

16 Driver v. Helms, 557 F.2d 147, 155-57 (1st Cir. 1978).

17 Briggs v. Goodwin, 569 F.2d 1, 9-10 (D.C. Cir. 1977).

Circuits holding federal officials amenable to nation-

wide personal jurisdiction, service of process, and

venue standards in damages actions for civil rights vio-

lations under 28 U.S.C. 1391(e). This Court held that

1391(e) did not apply to damages actions against fed-

eral officials in their individual capacities, and there-

fore did not reach the Courts of Appeals’ determina-

tions that Fifth Amendment due process standards

were not offended by the provision for nationwide per-

sonal jurisdiction and service of process. However, the

Court’s discussion strongly implies agreement with

that reasoning, 100 S.Ct. at 784-85. Dissenting, Jus-

tices Stewart and Brennan found 1391(e) applicable to

the damages suits and therefore did reach the relevant

Fifth Amendment question, 100 S.Ct. at 789:

“{D]ue process requires only certain minimum

contacts between the defendant and the sovereign

that has created the court. [Citations.] The issue is not

whether it is unfair to require a defendant to

assume the burden of litigating in an inconveni-

ent forum, but rather whether the court of a par-

ticular sovereign has power to exercise personal

jurisdiction over a named defendant. The cases be-

fore us involve suits against residents of the Unit-

ed States in the courts of the United States. No due

process problem exists.” [Emphasis supplied.]'8

18 The dissenting Justices went on to point out that the liberal

venue-transfer provision of 28 U.S.C. 1404(a) answered any “fair

ness” argument.

In Leroy v. Great Western United Corp., 99 S.Ct. 2710

(U.S. 1979), this Court reversed a decision of the Fifth

Circuit Court of Appeals that had held Idaho defend-

ants amenable to federal court venue and personal

jurisdiction in Texas in a suit based on federal law.1°

This Court reversed on the view that venue was im-

proper and expressly did not reach “the constitutional

question arising out of the attempt to assert personal

jurisdiction over appellants.” 99 S.Ct. at 2715. Dis-

senting, Justices White, Brennan, and Marshall found

venue proper inthe Texas court under 15U.S.C. §78aa,

and therefore did reach the constitutional issue, stat-

ing, 99 S.Ct. at 2721:

“(There [are] no restrictions imposed by the Con-

stitution on the exercise of jurisdiction by the

United States over its residents [citation.]”

It is therefore very clear that, insofar as contitutional

limits go, the correct inquiry in the present case was

Fifth Amendment due process and contacts with the

United States, rather than Fourteenth Amendment

standards and contacts with Texas. Further, in Stafford

and Leroy, four Justices of this Court stated that under

applicable Fifth Amendment standards personal juris-

diction can be asserted over any United States resident

19 Great Western United Corp. v. Kidwell, 577 F.2d 1256 (Sth Cir.

1978), The Fifth Circuit held the Idaho defendants subject to per-

sonal jurisdiction under the Texas long-arm statute and the Four-

teenth Amendment, and therefore did not reach the issue of

whether there should be a federal personal jurisdiction standard in

such a case

anywhere in the United States. The majority opinion in

Stafford implies agreement with that view. While the

present defendants are not U.S. residents, they were

served with process in the United States; the record

herein shows significant United States contacts (R.

128, 137, 159, 180), and would have shown more but

for defendants’ “flagrant” and “contumacious’ dis-

covery roadblock. Petitioners submit that Stafford, Leroy

and the above-cited lower court decisions show that

personal jurisdiction could constitutionally be assert-

ed over these defendants. At a minimum, the decisions

certainly show that nothing in the constitution re-

quired the evisceration of the district court’s discovery

powers.

This section of the Petition has sought to demon-

strate that the Fifth Circuit’s application of state-law

jurisdictional concepts could not validly derive from

either constitutional law or Erie analysis. By way of

attenuated postscript, it should also be explained that

the reasoning and result below could not sensibly have

come from Fed.R.Civ.P. 4(e). It is true that most of the

above decisions applying or discussing the application

of nationwide personal jurisdiction standards involved

situations in which Congress had (or had arguably)

provided for nationwide service of process. It is also

true that, when service of process is made via Fed.R.

Civ.P. 4(e) and a state long-arm statute, there is an

argument based on the language of 4(e) — “service. . .

under the circumstances and in the manner prescribed

by [state] statute” — that federal courts areconfined by

state-law personal jurisdiction concepts. However: (1)

The Fifth Circuit did not rest its decision on the

language of Rule 4(e) but on “limitations of sovereign-

ty under due process,” 629 F.2d at 1139. (2) Whether

Rule 4(e) should confine a federal-question or admiral-

ty court to state-law persona’ jurisdiction limits has

been a vigorously debated topic in the courts of the

Fifth Circuit and among the commentators;?° reach-

ing a conclusion one way or the other on that question

would have involved extended analysis and inquiry

which the Court below plainly did not make. (3) Apply-

ing Rule 4(e) to defeat discovery sanctions would have

been an unexplained preference for one federal rule,

4(e), over another, 37(b), and it would have left un-

explained the Fifth Circuit’s apparent view that the

Rule 37(a) discovery orders were valid, 629 F.2d at

1137. (4) To turn this case on Rule 4(e) would have re-

quired taking account of the fact that plaintiffs first

served defendant Inversiones under Rule 4(d)(3)

through its agent Gulf Coast Shipping of Houston (R.

103).21 (5) Deciding the case on the basis of the

language of Rule 4(e) would have required an account-

ing of the fact that Rule 4(d)(7), which by its terms is

broad enough to encompass extraterritorial service, is

unlike Rule 4(e) in that it refers to service “in the

manner” prescribed by state law but omits reference to

20 See, Judge Godbold’s dissent in Great Western United Corp. v. Kid

well, 577 F.2d 1256, 1293 (Sth Cir. 1978); Navarro v. Sedco, Inc., 449

F.Supp. 1355, 1357-58 n. 1(S.D. Tex. 1978), and citations therein

21. The Court below acknowledged that “plaintiffs were never

given an opportunity to find or present facts through discovery in

dicating valid service,” 629 F.2d at 1139, but evidently felt itself

bound by defendant's assertion that Gult Coast was not its agent

“under the circumstances” prescribed by state law. (6)

Finding that state-law limits come in through Rule 4(e)

to defeat the district court’s powers granted by Rule

37(b) would have been in conflict, at least in principle,

with this Court’s decision in Walker v. Armco Steel Corp.,

100 S.Ct. 1978, 1985-86 (U.S. 1980); this was a diver-

sity case in which this Court reiterated and

reemphasized the principle that, in cases of direct con-

flict between state law and a Federal Rule of Civil Pro-

cedure, the Federal Rule prevails.

Il]. Certiorari Should Be Granted To Resolve A

Conflict Between the Decision Below And

This Court’s Decisions On The Deterrence

Function Of Discovery Sanctions.

The Court of Appeals in the present case held that

default judgment is not available as a sanction against

defendants challenging federal court in personam juris-

diction, and seems to have foreclosed the availability of

any of the Fed.R.Civ.P. 37(b) sanctions in such situa-

tions. There seems no way to read the decision that

does not give substantial comfort to those who would

hope to challenge federal court jurisdiction and con-

ceal their contacts with the United States or the forum

state. This result is completely at odds with recent

emphasis in the decisions of this Court, the lower fed-

eral courts, and the literature of the importance of the

general deterrence function of Rule 37(b) sanctions. In

National Hockey League v. Metropolitan Hockey Club, Inc., 427

U.S. 639, 643 (1976), this Court approved dismissal of

the plaintiff's action as a sanction against refusal to

make discovery, stating:

But here as in other areas of the law, the most

severe in the spectrum of sanctions provided by

statute or rule must be available to the District

Court in appropriate cases, not merely to penalize

those whose conduct may be deemed to warrant

such a sanction, but to deter those who might be

tempted to such conduct in the absence of such a

deterrent.

This Court recently reinforced and reaffirmed that

policy in Roadway Express, Inc. v. Piper, 100 S.Ct. 2455,

2462 (U.S. 1980). The same policy was strongly

emphasized by Justices Powell, Stewart, and Rehn-

quist, dissenting from writ denial in AFC Industries, Inc. v,

E.E.O.C., 439 U.S. 1981, 99 S.Ct. 865, 868-69 (1979).

The Courts of Appeals have been vigorously pursu-

ing the National Hockey League deterrence policy. See

generally, Note, “The Emerging Deterrence Orienta-

tion in the Imposition of Discovery Sanctions,” 91

Harv.L.Rev. 1033 (1978); Epstein et al., “An Update on

Rule 37 Sanctions After National Hockey League v.

Metropolitan Hockey Clubs, Inc.,” 84 F.R.D. 145

(1980), and citations therein; 4A Moore’s Federal Prac-

tice, § 37.02[2.-5]. The thrust of the Fifth Circuit’s de-

cision is diametrically opposed to the current of all

these decisions and to the directives of this Court in

National Hockey League and Roadway Express. The present

decision conflicts in significant principle with all the

above cases, including other decisions of the Fifth Cir-

cuit, and certiorari should be granted to resolve that

conflict.

IV. Certiorari Should Be Granted To Resolve A

Conflict Between The Decision Below and

This Court’s Decisions on “Jurisdiction To

Determine Jurisdiction’ In Admiralty

Cases.

The present case was brought under the district

court’s admiralty jurisdiction, 28 U.S.C. §1333(R. 4). It

has been said that “(t]he autonomy of admiralty from

the common law is of constitutional magnitude.”22 For

example, in personam jurisdiction can be acquired in ad-

miralty through the device of maritime attachment,

Fed.R.Civ.P. B, by attaching any tangible or intangible

property of defendant wherever found, without refer-

ence to whether defendant has ever had any other con-

tacts with the United States.23 Further, even apart

from maritime attachment, it has been frequently

stated that personal jurisdictionin admiralty can be up-

held on the basis of a single prior visit of defendant's

ship to the place of the forum.?4 In such cases, while

22 Grand Bahama Pet. Co. v. Canadian Transp., 450 F.Supp. 447, 453

(W.D. Wash. 1978).

23 See, e.g., Amoco Overseas 0. Compagnie Nationale Algerienne, 605

F.2d 648, 655 (2d Cir. 1979) (see discussion of admiralty’s “special

history and [unique] circumstances,” and of the concept of “juris-

diction by necessity”); Grand Bahama, supra, 450 F.Supp. at 452-56;

Engineering Equip. Co. v. S.S. Selene, 446 F.Supp. 706, 709-10 (S.D.

N.Y. 1978). [These cases conclude that Shaffer v. Heitner, 433 U.S

186 (1977), does not limit maritime attachment |

24 Kane v. Union of Soviet Socialist Republics, 394 F.2d 131 (3d Cir.

1968); Gkiafis v. Steamship Yiosonas, 342 F.2d 546, 555 (4th Cir. 1905);

Engineering Equip. Co., supra, 446 F.Supp. at 710 (alternative hold-

ing); Granite & Quartzite Centre. Inc. v. M/S Virma, 374 F.Supp. 1124

(S.D. Ga. 1974); Mackensworth v. American Trading Transp. Co., 307

state law thought applicable via Fed.R. 4(e) might re-

quire that the lawsuit arise out of that ship contact,

there is probably no constitutional requirement to that

effect.25

The above special characteristics of admiralty juris-

prudence strongly suggest that the court below should

have found personal jurisdiction established over these

admiralty defendants on the basis of the showing of de-

fendants’ and the UKOLA’s contacts with the United

States and with Texas that plaintiffs were able to make

even in the fact of defendants’ discovery roadblock.

More to the present point, they show that the Fifth

Circuit’s opinion, which did not even mention the fact

that this was an admiralty case, overlooked the rele-

vance of this Court’s decisions on the scope of admiral-

ty’s “jurisdiction to determine jurisdiction.”

The scope of admiralty’s concept of jurisdiction to

determine jurisdiction was firmly established in Swift &

Co. Packers v. Compania Columbiana Del Caribe, 339 U.S.

684, 691 (1950). Plaintiffs in that case sought to pro-

ceed against foreign corporate defendants by way

of the writ of foreign attachment (now called maritime

attachment, Fed.R.Civ.P. B) through seizing a vessel in

F.Supp. 373 (E.D. Pa. 1973) (opinion, including headnotes, in

verse); Mitsubishi Shoji Kaisha Ltd. v. M/S Galina, 323 F.Supp. 79, 82

(S.D. Tex. 1971).

25 See Mackensworth, supra; Long v. Vessel “Miss Ida Ann”, 490

F.Supp. 210, 214-15 (S.D. Tex. 1980); Navario v. Sede, Im., 449

F.Supp. 1355, 1359-60, 1361-62 (S.D. Tex. 1978); Edwards v. Gull

Mississippi Marine Corp., 449 F.Supp. 1363, 1368 (S.D. Tex. 1978)

the jurisdiction of the United States District Court

where suit was brought. Defendants contested the

validity of the attachment, contending that the vessel

no longer belonged to the defendant. Plaintiffs alleged

that the transfer was fraudulent and an effort to de-

feat the jurisdiction of the court. Both the trial court

and the Court of Appeals for the Fifth Circuit conclud-

ed that admiralty lacked subject matter jurisdiction to

inquire into whether the transfer was fraudulent. Cut-

ting through that argument, this Court, in an opin-

ion by Justice Frankfurter, held that the importance of

the maritime attachment device as a means of provid-

ing jurisdiction in admiralty meant that the court must

have power to protect its jurisdiction by examining the

transfer, stating:

It would be strange indeed thus to hobble a legal

system that has been so responsive to the practi-

calities of maritime commerce and so inventive in

adapting its jurisdiction to the needs of that com-

merce.

The Fifth Circuit’s decision herein imposes a limit on

the power of an admiralty court to inquire into and (if

the facts warrant) perfect its jurisdiction over a peri-

patetic maritime defendant that is antithetical to Swift.

More recently, in Hellenic Lines Limited v. Rhoditis, 398

U.S. 306, 309-10 (1970), this Court treated the issue of

subject matter jurisdiction under the Jones Act (in an

action by an alien plaintiff against a foreign corporate

shipowner) ina way that conflicts in principle with the

decision below. The Rhoditis suit originated as a libel in

rem against the vessel. After discovery revealed sub-

stantial United States ties, plaintiff moved to have the

Jones Act applied (see opinion of United States Court of

Appeals for Fifth Circuit, 412 F.2d 919, 920 n. 4 (Sth

Cir. 1968).) This Court upheld application of the Jones

Act on the basis of the discovery-assisted finding that

the actual ownership of the vessel rested principally in

a long-time resident alien of the United States. Point-

ing out that the resident alien enjoyed the same con-

stitutional protections of due process as a citizen, this

Court articulated as a quid nro quo his amenability to the

obligations of a United States shipowner under the

Jones Act and other United States law.

The Fifth Circuit decision in the present case cuts

against Rhoditis by effectively depriving the plaintiffs of

the assistance of the federal judiciary in discovering the

actual United States contacts of the owners and oper-

ators of the UKOLA. The district court herein deter-

mined to pursue discovery on jurisdictional issues be-

fore deciding on the motions to dismiss partly on the

basis of counsel’s assurance that preliminary investi-

gations had suggested fairly frequent contacts of the

UKOLA with the United States and that the actual

beneficial ownership of the vessel was in United States

citizens or permanent resident aliens of the United

States. If plaintiff is not to have the benefit of discov-

ery to validate or rebut those preliminary indications,

then the principle of Rhoditis is undone.

Because the decision below conflicts in principle with

Swift & Co. and Rhoditis, certiorari should be granted

V. Certiorari Should Be Granted To Resolve

Conflict Among The Federal Courts on the

Meaning Of This Court’s Decision In United

States v. United Mine Workers of America.

The concept of “jurisdiction to determine jurisdic-

tion” means that a federal court has the authority to

determine whether it has jurisdiction over the parties

to and subject matter of a suit. See generally 13 Wright

& Miller, Federal Practice and Procedure §3536. Thus,

a federal court can issue a temporary restraining order

to preserve the status quo during a jurisdictional dis-

pute and punish violation of that order as contempt,

even though it may later develop that the court lacked

subject matter or in personam jurisdiction. United States v

United Mine Workers of America, 330 U.S. 258, 293 (1947);

United States v. Thompson, 319 F.2d 665, 667 (2d Cir. 1963)

The Uniied Mine Workers decision stands for a substan-

tial and broad “jurisdiction to determine jurisdiction”

concept. See, e.g., Nestor v. Hershey, 425 F.2d 504, 511

(D.C. Cir. 1969), citing United Mine Workers and the

“jurisdiction to determine jurisdiction” concept for the

court’s authority to proceed to the merits of a Selec-

tive Service Act dispute when the question of subject

matter jurisdiction and the merits issues were “inex-

tricably intertwined”.2°

The teaching of all of these cases is that a federal

court must necessarily be able to protect its jurisdic-

tional inquiry through issuing orders and sanctions to

effectuate determination of federal court jurisdiction.

The Fifth Circuit’s decision in the present case leaves

the district court with the power to issue (unenforce-

able) orders but denies sanctions powers; it is in con-

flict with United Mine Workers and the above Court of

Appeals decisions.’

Furthermore, petitioners submit that the present de-

cision is exemplary of conflict within the Fifth Circuit

Court itself as tothe scope of the “jurisdiction to deter-

mine jurisdiction” principle. In State of Florida v. Treasure

Salvors, 621 F.2d 1340, 1345-46 (Sth Cir. 1980), the

26 See also Lambert v. Conrad, 536 F.2d 1183, 1185 (7th Cir. 1976),

citing United Mine Workers and the principle of “jurisdiction to

determine jurisdiction” in support of the res judicata effect of a prior

decision rendered by a court lacking in personam jurisdiction; United

States v. Hall, 472 F.2d 261, 265 (Sth Cir. 1972), citing United Mine

Workers and “jurisdiction to determine jurisdiction” for the court's

authority to issue a temporary restraining order against all per-

sons who might have notice of the order and punish violators for

contempt in order to prevent disturbance of a school desegrega-

tion decree.

27 Goldlawr, Inc. v. Heiman, 369 U.S. 463, 466-67 (1962), is closely

related to the “jurisdiction to determine jurisdiction” cases and

represents a policy of federal court jurisdiction and procedure that

is offended by the decision below. Goldlawr stands for the proposi-

tion that a federal district court lacking personal jurisdiction has

power to transfer the case to a district where personal jurisdic-

tion can be perfected. 15 Wright & Miller, Federal Practice and

Procedure §3827, p. 171

majority used the “jurisdiction to determine jurisdic-

tion” concept ina way that is fully opposed in principle

to the present Fifth Circuit decision. Meeting the

State’s argument that the Eleventh Amendment meant

the federal court lacked jurisdiction to adjudicate the

ownership of state-claimed property, the Court stated:

Once an appropriate challenge [tothe State’s claim

of ownership] is made, the district judge is no long-

er compelled to conclude that the State owns the

res in dispute. Instead, the Court must make a

jurisdictional determination very similar to that

made in the classic ‘jurisdiction to determine juris-

diction’ line of cases.

Judge Rubin, a member of the Fifth Circuit panel that

decided the present case, dissented in Treasure Salvors,

taking a much narrower view of the “jurisdiction to

determine jurisdiction” concept, 621 F.2d at 1351:

The doctrine that a court has jurisdiction to deter-

mine its own jurisdiction does not permit it to de-

cide the merits of a suit against the state. Once the

state appears and asserts title to the property in

dispute the Court's jurisdiction is ended.

Judge Rubin’s view of the “jurisdiction to determine

jurisdiction” concept prevailed in the present case, 629

F.2d at 1139.

That view squarely conflicts with cases like the

Seventh Circuit decision in Nestor v. Hershey, supra, and it

conflicts in principle with the United Mine Workers case

and its progeny. Certiorari should be granted to re-

solve these conflicts.*8

CONCLUSION

Wherefore, petitioners respectfully pray that a writ

of certiorari be granted.

Paul H. Due’

Attorney of Record

Due’, Dodson & deGravelles

442 Europe Street

Baton Rouge, Louisiana 70802

(Area 504) 383-8851

David W. Robertson

Of Counsel

Gravel, Robertson & Brady

711 Washington Street

Alexandria, Louisiana 71301

(Area 318) 487-4501

29 Another Fifth Circuit decision showing a dispute within that

Court as to the meaning of “jurisdiction to determine jurisdic-

tion” is United States v. Holland, 552 F.2d 667, 675 (Sth Cir. 1977),

vacated, 565 F.2d 383 (Sth Cir. 1978).

CERTIFICATE

I hereby certify, pursuant to United States Supreme

Court Rule 28.3, that all counsel of record herein have

been served with three copies each of this Petition by

depositing same in the United States Mail, first class

postage prepaid, properly addressed to counsel at his

post office address.

APPENDIX “A”

Maria Emella FAMILIA DE BOOM. , et al.,

Plaintiffs-Appellees,

versus

AROSA MERCANTIL, S.A. and

Inversiones Calmer, S.A.,

Defendants-Appellants.

No. 79-1964

United States Court of Appeals,

Fifth Circuit.

Nov. 7, 1980.

Appeal from the United States District Court for the

Southern District of Texas.

Before RUBIN, HENDERSON and REAVLEY, Cir-

cuit Judges.

REAVLEY, Circuit Judge:

This is an appeal from a default judgment entered

against the defendants, Arosa Mercantil, S.A.

(“Arosa”) and Inversiones Calmer, S.A. (“Inver-

siones”), for failure to comply with the district court's

order compelling answers to interrogatories pursuant

to Fed.R.Civ.P. 37. These interrogatories concerned

matters relevant to the determination of the court’s in

personam jurisdiction over defendants. Upon failure to

answer, the court refused to consider the defendants’

Rule 12(b) motion to dismiss for lack of jurisdiction and

entered a default judgment assessing damages against

both defendants jointly, severally, and in solido of $1,-

129,341.93 as a sanction for failure to make discovery.

Fed.R.Civ.P. 37(b)(2)(c).

The issues on appeal are: 1) whether the district

court had personal jurisdiction over the defendants

upon which to base the default judgment; and 2)

whether the district court abused its discretion in

granting a default judgment for over $1,129,000 as a

sanctio. for failure to answer interrogatories. Since we

feel that the plaintiff failed to adequately prove per-

sonal jurisdiction, we must reverse, and remand to the

district court for further proceedings.

This case arises out of the sinking of the motor vessel

UKOLA onthe high seas of the Gulf of Mexico on Jan-

uary 19, 1977. The vessel, a freighter used for trans-

porting bulk commodities, had sailed from the Domin-

ican Republic on or about January 15, 1977. Approxi-

mately two days out of port, the vessel was directed to

proceed to Galveston, Texas to offload her cargo of

sugar. As a result of the sinking, twenty of twenty-

three crewmen aboard the UKOLA died and the vessel

and her cargo of sugar were lost.

This suit was filed by one survivor and the personal

representatives of a number of the deceased seaman

against Arosa, the owner of the M/V UKOLA and In-

versiones, the vessel's charterer.! The plaintiffs alleged

damages under the Jones Act, 46 U.S.C. §688 (1976)

and general maritime law. The merits of the claim have

not been addressed.

After filing suit, plaintiffs filed six interrogatories

directed to Arosa. There was no response of any kind

by Arosa until a hearing on plaintiff’s motion to com-

pel answers to the interrogatories on July 18, 1977

when Arosa entered a motion to dismiss for lack of per-

sonal and subject matter jurisdiction,2 and for insuffi-

ciency of service of process. At this hearing the court

ordered Arosa to file answers to these first interroga-

tories. Arosa filed the answers on September 2, 1977.

1 Favori Shipping Company was also joined as a defendant, but

was not included in the default judgment order. The default judg-

ment against Arosa and Inversiones was made a final judgment by

order of the district court pursuant to Fed.R.Civ.P. 54(b), March 9,

1979.

2 Defendants argue that the default judgment cannot stand be-

cause the trial court lacked subject matter jurisdiction. What the

defendants characterize as subject matter jurisdiction, the ques-

tion of whether these plaintiffs are entitled to protection under

the Jones Act, actually concerns the merits of the case. The trial

court never determined the case on the merits and neither shall

we.

Plaintiffs also filed a second set of interrogatories on

July 11, 1977, which are of primary concern to us now.

Arosa moved to postpone discovery and to extend the

time to answer interrogatories. These motions, along

with the previously filed motion to dismiss and plain-

tiffs’ motion to compel answers to these interrogator-

ies, were argued at a hearing before the court Septem-

ber 14, 1977. The court refused to consider the de-

fendant’s motion to dismiss until plaintiffs could gather

facts concerning jurisdiction through discovery. The

court also ordered Arosa to answer within 60 days the

interrogatories which concerned jurisdictional and re-

lated issues.

After Arosa failed to answer within the time speci-

fied by the court order, plaintiffs moved for sanctions

to be imposed; specifically, ajudgment of default on the

issue of liability against Arosa. Plaintiffs also filed a

motion to compel answers to interrogatories served

five months before on Inversiones, which had been

joined as a defendant. At a hearing on March 8, 1978,

the court granted the interlocutory default judgment

against Arosa for failure to comply with the court's

previous order, and set the hearing on the question of

damages for May 9, 1978. As toInversiones, the court

refused to consider its motion to dismiss for lack of

jurisdiction, as it had done with Arosa’s similar motion,

until plaintiffs had the opportunity to complete dis-

covery. The court granted Inversiones an additional fif-

teen days to answer the interrogatories. Inversiones

“answered” within the fifteen day period, but the

answers consisted primarily of statements that “de-

fendant is unable at this time to answer.” None of the

purported answers given by Inversiones were differ-

ent from the answers given by Arosa, finally filed on

March 23, 1978, after the default judgment was grant-

ed, so it is doubtful that Inversiones itself contributed

directly to any of the answers.

At the May 9 hearing, the district court included In-

versiones in the default judgment.‘ The plaintiff intro-

duced depositions of the survivors of the various sea-

men as evidence on the issue of quantum of liability

against the defendants. On December 26, 1978, the dis-

trict court entered judgment assessing damages

against Arosa and Inversiones jointly, severally, andin

solido, inthe sum of $1,129,341.93 plus interest at nine

per cent from January 19, 1977.5

3 The interrogatories consisted of such questions as: whether

Inversiones was a corporation and, if so, its date and place of in-

corporation; whether Inversiones had a branch office in the Unit-

ed States; whether Inversiones carried on any type of business

transaction in the United States; and other simple questions.

4 We emphasize that at the May 9 hearing the district court

made it clear that it did not question the good faith of the attorney

for Arosa and Inversiones. Rather, it found that the flagrant vio-

lation of the court’s orders was attributable to the attorney's

clients.

5 Eleven actions pending in five federal judicial districts, includ-

ing this action, concerning the sinking of the M/V UKOLA were

presented before the judicial panel on multidistrict litigation, pur-

suant to 28 U.S.C. §1407 (1976), to transfer all actions pending in

districts other than the Southern District of Florida to that district

for coordinated or consolidated pretrial proceedings with the

[t is well settled that a court has the jurisdiction to

determine its own jurisdiction, subject to appellate re-

view. Atlantic Las Olas, Inc. v. Joyner, 466 F.2d 496, 498

(Sth Cir.); 13 Wright & Miller, Federal Practice and Pro-

cedure §3536 (1975). The district judge has broad dis-

cretion to allow discovery on the jurisdictional issue in

order to facilitate its determination. Washington v. Nor-

ton Manufacturing, Inc., 588 F.2d 441 (Sth Cir. ), cert. denied,

442 U.S. 942, 99 S.Ct. 2886, 61 L.Ed.2d 313 (1979).

When a party fails to answer interrogatories served

upon it by the other party, the court, upon motion by

the discovering party, may enter an order compelling

answers. Fed.R.Civ.Pro. 37(a). If the party then fails to

comply with that order, the rules further provide for

sanctions by the court, one of which is an order of de-

fault judgment against the disobedient party. Fed.R.

Civ.P. 37(b)(2)(c).

Assuming, without deciding, that the trial judge was

within his discretion in imposing the default judgment

against Arosa and Inversiones for failure to comply

with the order compelling discovery, that judgment is

valid only if the court had personal jurisdiction over the

defendants. The defendants assert that the record does

not support jurisdiction under the Texas long-arm

actions pending there. The panel, however, refused to include this

action in the consolidated proceeding as it “would not accomplish

the goals of Section 1407”. This case was severed from the other

claims before the panel and remanded to the Southern District of

Texas. In re Sinking of the Motor Vessel UKOLA, 462 F.Supp. 385

(Jud.Pan.Mult.Lit. 1978).

statute, Tex.Rev.Civ.Stat.Ann. art. 2031b (Vernon

1964),¢ nor does it support jurisdiction so as to comply

with federal due process. They also argue that plain-

tiffs did not satisfy the requirements of Article 2031b

for service of process.

The burden is on the plaintiff to establish jurisdic-

tion when challenged by the defendant. Product Promo-

6 The Texas long-arm statute, Tex.Rev.Civ.Stat. §2051b (Ver-

non 1964), provides in pertinent part:

Act of engaging in business in state as

equivalent to appointment of

Secretary of State as agent

Sec. 3. Any foreign corporation, association, joint stock com-

pany, partnership, or nonresidential natural person that engages

in business in this State, irrespective of any Statute or law re-

specting designation or maintenance of resident agents, and does

not maintain a place of regular business in this State or a desig-

nated agent upon whom service may be made upon causes of

action arising out of such business done in this State, the act or

acts of engaging in such business within this State shall be deem-

ed equivalent toan appointment by such foreign corporation, joint

stock company, association, partnership, or non-resident natural

person of the Secretary of State of Texas as agent upon whom

service of process may be made in any action, suit or proceedings

arising out of such business done in this State, wherein such cor-

poration, joint stock company, association, partnership, or non-

resident natural person is a party or is to be made a party.

* * * * * *

Delivery of process to Secretary of State; forwarding copy

Sec. 5. Whenever process against a foreign corporation, joint

stock company, association, partnership, or non-resident natura!

person is made by delivering to the Secretary of State duplicate

copies of such process, the Secretary of State shall require a state-

ment of the name and address of the home or home office of the

non-resident. Upon receipt of such process, the Secretary of State

shall forthwith forward to the defendant a copy of the process by

registered mail, return receipt requested.

tions v. Cousteau, 495 F.2d 483 (Sth Cir. 1974). In this case,

the plaintiffs were foreclosed from presenting juris-

dictional evidence in the exclusive possession of the de-

fendants because the defendants refused to disclose the

information in response to discovery procedures. That

the plaintiffs may have been unable to obtain informa-

tion from the defendants, however, does not exempt

them from this burden of proof. For us to uphold the

district court’s order of default we must find facts in

the record to support the court’s exercise of personal

jurisdiction over Arosa and Inversiones.

To establish personal jurisdiction over a non-resi-

dent defendant, the plaintiff must prove that the long-

arm statute of the state in which the court sits confers

jurisdiction and that the exercise of jurisdiction under

state law comports with federal notions of due process.

Cousteau, 495 F.2d at 489. The Texas long-arm statute,

under which the plaintiffs assert jurisdiction, has been

interpreted by the Texas Supreme Court to reach “as

far as federal constitutional requirements of due

process will permit.” U-Anchor Advertising, Inc. v. Burt,

553 S.W.2d 760, 762 (Tex. 1977). Therefore, we turn

immediately to the federal law question of con-

stitutional due process.

In International Shoe v. Washington, 236 U.S. 310, 66

S.Ct. 154, 90 L.Ed. 95 (1945), the Supreme Court de-

clared that a state could assert personal jurisdiction

over a non-resident corporation provided it had “cer-

tain minimum contacts with [the state] such that the

maintenance of the suit does not offend traditional

notions of fair play andsubstantial justice.” Id., 326 U.S.

at 317, 66 S.Ct. at 159, 90 L.Ed. at 102. Therefore, we

must here decide if the defendants’ contacts with Texas

were sufficient to permit Texas to assert jurisdiction,

and, if so, if the jurisdiction was assertedin the manner

required by Rule 4, Fed.R.Civ.P., which permits serv-

ice in the manner permitted by Texas law.

Due to the posture in which this case comes before

us, the facts relevant to the jurisdictional issue do not

appear on the record. Therefore, we feel it is impos-

sible for us to find personal jurisdiction in this case.

Courts have been liberal in finding jurisdiction in cases

involving nonresident corporate defendants, see, e.g.,

Standard Fittings Co. v. Sapag, S.A., 625 F.2d 630 (Sth Cir.

1980); Southwest Offset, Inc. v. Hudco Publishing Co., 622 F.2d

149 (Sth Cir. 1980); Cousteau. But on this record, the

only contacts which the defendants have with Texas

are that the UKOLA had been to Texas at least once be-

fore while Arosa was the owner and Inversiones was

the charterer, and that the UKOLA was bound for

Texas when the tragedy occurred. The answers to the

interrogatories which were filed indicate that neither

corporation had stockholders in Texas, or for that

matter, in the United States. The record contains no

proof of any contract for delivery of sugar in Texas, an

agent in Texas, or any other facts which would be suf-

ficient to satisfy the due process standard.

10a

Although we refuse to find personal jurisdiction on

the record as it is now, we feel that the plaintiffs should

be given an opportunity to introduce those facts rele-

vant to jurisdiction. If the defendant actually does have

minimumcontacts with the State of Texas, the plaintiff

may be able to show it even though the defendant re-

fuses to comply with discovery.

The plaintiffs ask that we find jurisdiction in this case

through waiver. The Eighth Circuit, in English v. 21s!

Phoenix Corp., 590 F.2d 723 (8th Cir.), cert. denied, 444U.S.

832, 100 S.Ct. 61, 62 L.Ed.2d 41 (1979), was faced with

a situation much like the one presented here. In that

case, the district court found the defendant corporation

within its jurisdiction as a sanction for failure to

respond to discovery. The court of appeals affirmed,

recognizing that in personam jurisdiction may be obtain-

ed by actions of a party amounting to waiver. Id. at 728

n.5. The Fourth Circuit has also approved the use of the

sanction of default judgment when the defendants re-

fused to provide the information necessary to make

these jurisdictional determinations. Lekkas v. Liberian

M/V Caledonia, 443 F.2d 10 (4th Cir. 1971). There is no

Fifth Circuit guidance on this precise point.

Although we are tempted to follow the Fourth and

Eighth Circuits and hold that the defendants waived

jurisdiction by their contumacious conduct, we must

refrain from doing so. Unlike 21st Phoenix, we have no

finding by the district court that the defendants were

doing business in Texas. We have only the facts on the

lla

record, which do not satisfy the due process require-

ment of jurisdiction. Without the necessary facts on

the record, we may not impose jurisdiction.

This leaves the district judge in a quandary in trying

to enforce his discovery order, but that is a necessary

result of the limitations of sovereignty under due

process. Although the district court undoubtedly has

jurisdiction to determine its own jurisdiction, it cannot,

on its own, establish jurisdiction. The Federal Rules of

Civil Procedure determine methods of service of

process, venue and other procedural requirements for

exercising jurisdiction in federal actions. They relate

only to procedure, however, and not to principles of

jurisdiction except insofar as service of process, made

in accordance with the rules, itself is a way of demon-

strating or completing the court's jurisdiction. Al-

though Rule 37 allows for the imposition of a default

judgment as a sanction for failure to comply with dis-

covery, it may be used only against parties who are

within the court's jurisdiction.

As with a challenge to jurisdiction, when service of

process is challenged, the party on whose behalf serv-

ice is made has the burden of establishing its validity. 5

Wright & Miller, supra, §1353 (1969). Although the

plaintiffs were never given an opportunity to find or

present facts through discovery indicating valid serv-

ice, we must again agree with the defendants, as the

plaintiffs did not satisfy this burden. There is noshow-

ing on the record of an agency relationship between

12a

Arosa and Lamonte, Burns & Co., upon whom service

was made through the Texas Secretary of State, nor is

there a showing of any connection between Inver-

siones and the Miami address to which process was

mailed. Moreover, when service is made upon the Sec-

retary of State pursuant to Article 2031b, the Texas

courts require the record toshow that the Secretary of

State actually forwarded the process to the defendant.

Whitney v. L & L Realty Corp., 500 S.W.2d 94, 96 (Tex.

1973). There is no such showing in this record.

Texas courts also require an allegation in the com-

plaint reciting the facts authorizing long-arm service of

process. McKanna v. Edgar, 388 S.W.2d 927 (Tex. 1965).

This court, however, has held that allegations, in the

complaint are not necessary when the claim is filed in

federal court if the facts appear elsewhere in the rec-

ord. Eyerly Aircraft Co. v. Killian, 414 F.2d 951 (Sth Cir.

1969). Here such facts do not appear in the complaint or

anywhere else in the record.

Although service of process and personal jurisdic-

tion may be waived by a party, we cannot find waiver

by the defendants here. There is no waiver so long as

the defendants expressly limited their appearance to

the determination of those very issues, which was done

by Arosa and Inversiones in this case.

Accordingly, we must reverse the default judgment

entered by the district court. We do feel, however, that

13a

the plaintiffs are entitled to another opportunity to de-

velop additional facts which would support jurisdic-

tion and valid service of process.

REVERSED AND REMANDED.

APPENDIX “B’

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

OFFICE OF THE CLERK

December 17, 1980

TO ALL PARTIES LISTED BELOW:

NO. 79-1964 MARIA EMELLA FAMILIA de

BOOM, ET AL. -vs- AROSA MER-

CANTIL, S.A., ET AL.

Dear Counsel:

This is to advise that an order has this day been enter-

ed denying the petition for rehearing, and no member

of the panel nor Judge in regular active service on the

Court having requested that the Court be polled on re-

hearing en banc (Rule 35, Federal Rules of Appellate

14a

Procedure; Local Fifth Circuit Rule 16) the petition for

rehearing en banc has also been denied.

See Rule 41, Federal Rules of Appellate Procedure for

issuance and stay of the mandate.

Very truly yours,

GILBERT F. GANUCHEAU, Clerk

ls} LINDA JOHNSON

Deputy Clerk

cc: Mr. Terry P. Ayre

Mr. David W. Robertson

Mr. Paul H. Due

APPENDIX “C’”

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

AMENDMENT V

TO THE CONSTITUTION

OF THE UNITED STATES

AMENDMENT [V]

No person shall be held to answer for a capital, or

otherwise infamous crime, unless ona presentment or

15a

indictment of a Grand Jury, except in cases arising in

the land or naval forces, or in the Militia, when in actual

service in time of War or public danger; nor shall any

person be subject for the same offence to be twice put

in jeopardy of life or limb; nor shall be compelled inany

criminal case to be a witness against himself, nor be de-

prived of life, liberty, or property, without due process

of law; nor shall private property be taken for public

use, without just compensation.

AMENDMENT XIV, Sec. 1

TO THE CONSTITUTION

OF THE UNITED STATES

AMENDMENT XIV

Section 1. All persons born or naturalized in the

United States, and subject to the jurisdiction thereof,

are citizens of the United States and of the State

wherein they reside. No State shall make or enforce

any law which shall make or enforce any law which

shall abridge the privileges or immunities of citizens of

the United States; or shall any State deprive any person

of life, liberty, or property, without due process of law;

nor deny to any person within its jurisdiction the equal

protection of the laws.

16a

Rule 37(a) Federal Rules of Civil Procedure

RULE 37. Failure to Make or Cooperate in Dis-

covery: Sanctions

(a) Motion for Order Compelling Discovery. A

party, upon reasonable notice to other parties and all

persons affected thereby, may apply for an order com-

pelling discovery as follows:

(1) Appropriate Court. Anapplication for an order to

a party may be made to the court in which the action is

pending, or, on matters relating to a deposition, to the

court in the district where the deposition is being

taken. An application for an order to adeponent whois

not a party shall be made to the court in the district

where the deposition is being taken.

(2) Motion. If a deponent fails to answer a ques-

tion propounded or submitted under Rules 30 or 31, or

a corporation or other entity fails to make a designa-

tion under Rule 30(b)(6) or 31(a), or a party fails to

answer an interrogatory submitted under Rule 33, or if

a party, in response to a request for inspection sub-

mitted under Rule 34, fails to respond that inspection

will be permitted as requested or fails to permit inspec-

tion as requested, the discovering party may move for

an order compelling an answer, or a designation, or an

order compelling inspection in accordance with the re-

quest. When taking a deposition on oral examination,

the proponent of the question may complete or ad-

journ the examination before he applies for an order.

17a

If the court denies the motion in whole or in part, it

may make such protective order as it would have been

empowered to make on a motion made pursuant to

Rule 26(c).

(3) Evasive or Incomplete Answer. For purposes of this

subdivision an evasive or incomplete answer is to be

treated as a failure to answer.

(4) Award of Expenses of Motion If the motion is

granted, the court shall, after opportunity for hearing,

require the party or deponent whose conduct necessi-

tated the motion or the party or attorney advising such

conduct or both of them to pay tothe moving party the

reasonable expenses incurred in obtaining the order,

including attorney’s fees, unless the court finds that

the opposition to the motion was substantially justi-

fied or that other circumstances make an award of ex-

penses unjust.

If the motion is denied, the court shall, after oppor-

tunity for hearing, require the moving party or the

attorney advising the motion or both of them to pay to

the party or deponent who opposed the motion the

reasonable expenses incurred in opposing the motion,

including attorney’s fees, unless the court finds that

the making of the motion was substantially justified or

that other circumstances make an award of expenses

unjust.

18a

If the motionis granted in part and denied in part, the

court may apportion the reasonable expenses incurred

in relation to the motion among the parties and per-

sons in a just manner.

Rule 37(b) Federal Rules of Civil Procedure

(b) Failure to Comply with Order.

(1) Sanctions by Court in District Where Deposition is

Taken. If a deponent fails to be sworn or to answer a

question after being directed to doso by the court in the

district in which the deposition is being taken, the fail-

ure may be considered a contempt of that court.

(2) Sanctions by Court in Which Action is Pending. If a

party or an officer, director, or managing agent of a

party or a person designated under Rule 30(b)(6) or

31(a) to testify on behalf of a party fails to obey an order

to provide or permit discovery, including an order made

under subdivision (a) of this rule or Rule 35, or if a party

fails to obey an order entered under Rule 26(f), the

court in which the action is pending may make such

orders in regard to the failure as are just, and among

others the following:

(A) An order that the matters regarding which the

order was made or any other designated facts shall be

taken to be established for the purposes of the action in

19a

accordance with the claim of the party obtaining the

order;

(B) An order refusing to allow the disobedient

party to support or oppose designated claims or de-

fenses, or prohibiting him from introducing desig-

nated matters in evidence;

of, or staying further proceedings until the order is

obeyed, or dismissing the action or proceeding or any

part thereof, or rendering a judgment by default

against the disobedient party;

(D) Inlieu of any of the foregoing orders or in addi-

tion thereto, an order treating as a contempt of court

the failure to obey any orders except an order to sub-

mit to a physical or mental examination;

(E) Where a party has failed to comply with an

order under Rule 35(a) requiring him to produce an-

other for examination, such orders as are listed in para-

graphs (A), (B), and (C) of this subdivision, unless the

party failing to comply shows that he is unable to pro-

duce such person for examination.

In lieu of any of the foregoing orders or in addition

thereto, the court shall require the party failing to obey

the order or the attorney advising him or both to pay

the reasonable expenses, including attorney's fees,

caused by the failure, unless the court finds that the

20a

failure was substantially justified or that the other cir-

cumstances make an award of expenses unjust.

Rule 4(d)(7) and 4(e) Federal Rules of Civil Procedure

(7) Upon a defendant of any class referred to in

paragraph (1) or (3) of the subdivision of this rule, it is

also sufficient if the summons andcomplaint are served

in the manner prescribed by any statute of the United

States or in the manner prescribed by the law of the

state in which the district court is held for the service of

summons or other like process upon any such defend-

ant in an action brought in the courts of general juris-

diction of that state.

(e) Same: Service Upon Party Not Inhabitant of or

Found Within State. Whenever a statute of the Unit-

ed States or an order of court thereunder provides for

service of asummons, or of a notice, or of an order in

lieu of summons upon a party not an inhabitant of or

found within the state in which the district court is

held, service may be made under the circumstances

and in the manner prescribed by the statute or order,

or, if there is no provision therein prescribing the

manner of service, in a manner stated in this rule.

Whenever a statute or rule of court of the state in

which the district court is held provides (1) for service

of a summons, or of a notice, or of an order in lieu of

summons upon a party not an inhabitant of or found

21a

within the state, or (2) for service upon or notice to him

to appear and respond or defend in an action by reason

of the attachment or garnishment or similar seizure of

his property located within the state, service may in

either case be made under the circumstances andinthe

manner prescribed in the statute or rule.

Tex. Rev. Civ. Stat. 2031b, sub-sections 3 and 5

The Texas long-arm statute, Tex.Rev.Civ.Stat.

§2031b (Vernon 1964), provides in pertinent part:

Act of engaging in business in state as

equivalent to appointment of

Secretary of State as agent

)

Sec. 3. Any foreign corporation, association, joint

stock company, partnership, or non-resident natural

person that engages in business in this State, irrespec-

tive of any Statute or law respecting designation or

maintenance of resident agents, and does not maintain

a place of regular business in this State or a designated

agent upon whom service may be made upon causes of

action arising out of such business done in this State,

the act or acts of engaging in such business within this

State shall be deemed equivalent to an appointment by

such foreign corporation, joint stock company, asso-

ciation, partnership, or non-resident natural person of

the Secretary of State of Texas as agent upon whom

22a

service of process, may be made in any action, suit or

proceedings arising out of such business done in this

State, wherein such corporation, joint stock company,

association, partnership, or non-re ident natural per-

son is a party or is to be made a party.

Delivery of process to Secretary of

State; forwarding copy

Sec. 5. Whenever process against a foreign corpora-

tion, joint stock company, association, partnership, or

non-resident natural person is made by delivering to

the Secretary of State duplicate copies of such process,

the Secretary of State shall require a statement of the

name and address of the home or home office of the

non-resident. Upon receipt of such process, the Secre-

tary of State shall forthwith forward tothe defendant a

copy of the process by registered mail, return receipt

requested.

23a

APPENDIX “D”

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF TEXAS

GALVESTON DIVISION

MARIA EMILIA FAMILIA deBOOM,

spouse of decedent Hugo Boom Martinez,

Individually, et al

versus C.A. G-77-28

AROSA MERCANTILS.A., FAROVI SHIPPING CO.,

and INVERSIONES CALMER, S.A.

Filed: March 15, 1978

ORDER OF DEFAULT AGAINST DEFENDANT,

AROSA MERCANTIL S.A.

On this the 8th day of March, 1978, there came for

hearing pursuant to regular assignment, the motion by

plaintiff in the above numbered and entitled proceed-

ing for judgment of default on the issue of liability

against one of the defendants herein, Arosa Mercantil

S.A., on the basis of said defendant's alleged willful fail-

ure and refusal to answer interrogatories propounded

by plaintiffs to said defendant after this Court had

ordered this defendant to answer certain interroga-

tories at a contradictory hearing previously held on

24a

plaintiffs’ motion to compel answers to interroga-

tories.

Present: Paul H. Due’, attorney for plaintiffs;

W. Garney Griggs, prior attorney of rec-

ord for defendant, Arosa Mercantil S.A.,

and

Terry P. Ayre, substituted attorney of rec-

ord for defendant, Arosa Mercantil S.A.

After reviewing the pleadings and the arguments of

counsel, for oral reasons assigned:

IT iS ORDERED that the motion by plaintiffs for

judgment of default on the issue of liability against de-

fendart, Arosa Mercantil S.A., be and it is hereby

granted; and, accordingly, judgment of default on the

issue of liability is granted against defendant, Arosa

Mercantil S.A. and in favor of plaintiffs herein.

ORDER RENDERED on the 8th day of March, 1978

at Galveston, Texas.

ORDER SIGNED on this 15th day of March, 1978, at

Galveston, Texas.

Is} FINIS E. COWAN

UNITED STATES DISTRICT

JUDGE

SOUTHERN DISTRICT

OF TEXAS

Order Submitted By:

Paul H. Due’ « ¢

DUE’, DODSON & deGRAVELLES

Attorneys for Plaintiffs

442 Europe Street

Baton Rouge, Louisiana 70802

Telephone: (504) 383-8851

TRUE COPY I CERTIFY

ATTEST:

V. BAILEY THOMAS, CLERK

is) GUADALUPE S. PINSIN

Deputy Clerk

26a

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF TEXAS

GALVESTON DIVISION

MARIA EMILIA FAMILIA de BOOM, ET AL

versus C.A. No. G-77-28

AROSA MERCANTIL, S.A., ET AL

BEFORE The Honorable FINIS E. COWAN, District

Judge

Filed: May 1, 1979

TRANSCRIPT OF PROCEEDINGS

OF MAY 9, 1978

APPEARANCES

Mr. Paul H. Due’ and Mr. Mike Palminter, 442

Europe Street, Baton Rouge, Louisiana, appearing for

the plaintiffs.

Mr. Terry P. Ayre of the law firm of Messrs. Brown,

Sims & Ayre, 2000 South Post Oak Road, Suite 1735,

Houston, Texas, appearing for defendants Arosa Mer-

cantil $.A., and Inversiones Calmer S.A.

Mr. William H. Seele, 1314 Texas Avenue, Houston,

Texas, appearing for defendant Farovi Shipping Com-

pany.

27a

[3] PROCEEDINGS

THE COURT: All right. Let the record reflect that

in connection with G-77-28 we went onthe record this

morning and commenced a hearing in connection with

the proof of damages inconnection witha judgment for

failure to make discovery and interlocutory default

previously entered against — it’s Arosa, isn’t it?

MR. AYRE: Yes, sir.

THE COURT: Arosa Mercantil S.A., and counsel

for defendant Arosa filed and argued a motion to set

aside the default.

The Court refrains from setting aside the default and

overrules the defendant Arosa’s motion toset aside the

default and thereupon the plaintiffs came on and stated

that they wished to introduce in evidence certain dep-

osition testimony.

50, Mr. Palminter, I’ll ask you to go ahead, please, sir,

and introduce such evidence as you wish tointroducein

connection with your proof of damages.

MR. PALMINTER: Your Honor, for the conveni-

ence of the Court, at Mr. Ayre’s suggestion, what we

have done is to join all of the [4] depositions by family.

In other words each deposition pertains to the individ-

ual deceased seaman. We can offer them in global.

28a

THE COURT: Yes, go ahead and offer them in

global if you would.

MR. PALMINTER: There are 10 depositions.

THE COURT: State what the names of the depo-

nents are ineachinstance and which decedent or claim.

MR. PALMINTER: The decedent, Hugo Boom

Martinez. The depositions of Carlos Eusebio Boom

Familia, and the deposition of Maria Emilia Familia de

Boom, widow of Hugo Boom Martinez.

Second, the deposition of Enamia Fortuna. She is a

dependent with a dependent child of Jose Albert Velez.

One deposition.

Next, the deceased seaman’s name is Roberto Cruz.

We have the deposition of Rosa Cruz, the decedent’s

mother, and the deposition of Juan Mercedes.

Next, the deceased seaman is Ramon Carasco.

We have the deposition of Olga Hernandez, whois a

dependent with 10 dependent [5] children, and we have

the deposition of Carmen Nolasco, a dependent

mother.

Next, the deceased seaman Jose Laluz Martino

Sabino, and we have the deposition of Ercilia Marce-

29a

lino. She is a dependent with six dependent children of

the deceased Jose Laluz Martino Sabino.

Next, the deceased seaman Geronimo Encarnacio

Figuero.

We have the deposition of Pastora Guillandeau, and

the name is misspelled on the deposition. She is a de-

pendent with four dependent children of the deceased

seaman.

Next, the deceased seaman Leon Leazard Chevalier.

And this deposition, this set, we took the deposition of

one major child and there was a stipulation that the re-

maining major children would testify similarly, and we

have the deposition of that major child who is, by the

way, Freddie Ramon Chevalier, and with that we have

the wife, Orfelina Mercado, widow of Leazard.

Next is the deceased seaman Eduardo Tavarez. We

have the deposition of the widow, Maria Pina, widow of

Tavarez.

Next is the deposition pertaining [6] to the deceased

Luis Felipe Astico. And this group of depositions we

have four, and first is Ercilia Marte De Los Santos.

Also, Eusebia Astoscio. Also, Maria Alejandrina, Leon

Garcia. Also, the deposition of Ramonita Mendez.

The deceased seaman Ramon Santana, and we have

the deposition of Victoria Santana, dependent mother

30a

of the deceased seaman. And Fatima Augustina Mon-

egro, widow of Santana.

Those are the depositions, your Honor, and to each

deposition by stipulation there are attached docu-

ments supporting the ages, birth, extracts and also

matrimonial extracts in the public records in the

Dominican Republic all in accordance with Dominican

Law.

THE COURT: Do the defendants have any evi-

dence in connection with the damage issue at all?

MR. SEELE: These depositions are being offered

solely concerning the decision to be entered against the

defendant in default?

THE COURT: Correct.

MR. SEELE: And for noother purpose at this time?

THE COURT: Correct.

[7] MR. SEELE: All right. We would have no testi-

mony to offer then.

THE COURT: All right.

The Court also will cstablish the following schedule

for the filing of memoranda.

3la

The plaintiffs will file within two days a memoran-

dum summarizing with reference to each decedent and

the one survivor, the age of the decedents, the best in-

formation available on the record concerning his earn-

ings, the number of his dependents, the regularity of

his work and any other pertinent matters concerning

an award of damages, including the amount claimed on

behalf of each decedent.

And the defendants will have until one week from to-

day, which will be May 16, in order to file a response

making such arguments as seem appropriate concern-

ing the damages to be awarded with reference to each

decedent and the one survivor.

Gentlemen, is there anything else we need to put on

the record in connection with the matter today?

MR. DUE’: Nothing further in connection with

Arosa Mercantil. We, of course, [8] have also asked the

Court for relief in the nature of a default judgment

against defendant Arosa Mercantil S.A., and we would

in that connection offer again — of course, we have a

memorandum insupport of that, all of which appears in

the record, but to indicate again the need for it we

respectfully address the Court’s attention to the most

pertinent interrogatory asking for who are the stock-

holders and equitable owners of this company, and the

defendants answer, after low these many months of

pendency of this suit, which! don’t have in front of me,

32a

but of course, the record speaks for itself, the answer

was that they couldn’t give us the information.

THE COURT: What is your response to that, this

motion for default against your client, Mr. Ayre?

MR. AYRE: We have answered all the interroga-

tories with all the information that’s available to us.

THE COURT: When you say “available to us,” you

mean available to counsel, don’t you?

MR. AYRE: That’s correct.

THE COURT: But you still have not given to the

plaintiffs the names of the owners of the [9] vessel?

MR. AYRE: Yes, sir, we have When I spoke with

Mr. Palminter last week, evidently there is a man in

Panama that they want to depose and I have no objec-

tion to taking his deposition and finding out whether or

not the information given to me is correct or not cor-

rect. The only reason we couldn’t go last — I think we

were going to take it yesterday in Panama, but as I have

been out for two weeks and I just couldn’t simply go

Sunday to take that deposition.

As far as I know the information we have supplied

with respect to stock ownership is correct. | have noin-

formation to the contrary.

33a

THE COURT: I am not clear, Mr. Due’, exactly

what it is you have not been furnished.

MR. AYRE: I think we have given you the stock —

MR. DUE’: Let me look at the record and I'll show

you my problem.

MR. AYRE: I have the answers here. There is the

interrogatory right there. No. 2.

MR. DUE’: Your Honor, I haven’t found it in the

suit record. If I can pass this file copy to the Court at

this time with reference [10] toInterrogatory No. 2, it

asks is it a corporation, if so, state the date, citizenship,

et cetera, and the names of the stockholders. And the

answer, “Defendant is unable at this time to answer

this interrogatory. As soon as this information is avail-

able.”

THE COURT: Let me read into the record the

interrogatory and the answer. What date was this

interrogatory served?

MR. DUE’: It was filed on September 7, 1977.

THE COURT: All right. And the answer?

MR. DUE’: lam trying to findit.I don’t see it in this

duplicate file.

34a

THE COURT: Here, your file copy would indicate

it.

MR. DUE’: April 14, 1978.

THE COURT: Is that an accurate date as far as you

know, Mr. Ayre?

MR. AYRE: As far as I know, your Honor, yes.

THE COURT: And the interrogatory, for the rec-

ord, reads:

“QUESTION: Is Inversiones Calmer [11] a cor-

poration, if so, state the date and place of incorporation,

citizenship of the corporation, whether the corporation

is the successor of any other business entity, and if so

the full name of all such predecessors within five years

prior to the date of acts sued on; the full name, resi-

dence, address and citizenship of all stockholders of In-

versiones within five years prior to the date of the acci-

dent and sued on upthrough the date of the accident.”

And the answer to this interrogatory, “As soon as

this information is available we will immediately sup-

plement this interrogatory.”

Let me ask you, Mr. Ayre, I don’t in any way chal-

lenge your good faith, and as an officer of the Court I

have complete faith in your integrity. Why is it your

client in this lawsuit, which has been on file now a long

35a

time, hasn’t been able to furnish at least some of this

rather fundamental! information?

MR. AYRE: They have been able to supply it and |

virtually cannot respond to why the stockholders, the

names or identities of the stockholders have been with-

held.

THE COURT: All right. In view of [12] that then,

Mr. Ayre, I don’t want this to reflect any discredit on

you because I don’t feel it reflects any discredit on you,

but I am going to grant the plaintiffs’ motion for a de-

fault for failure to make discovery against Inversiones

Calmer S.A. And we will ask you to submit, Mr. Due’,

an order to that effect within two days in accordance

with your other papers that you are to submit within

two days, and a judgment which I will enter will run

against both Arosa Mercantil S.A. and Inversiones

Calmer S.A.

Now, is there anything else? I’m going to take your

motion under advisement, Mr. Seele.

MR. SEELE: If I might just speak to the motion.

THE COURT: Goright ahead. Would you give me

your first name?

MR. SEELE: William.

36a

THE COURT: William. All right. Go ahead, Mr.

Seele. The Court also has under consideration today

Mr. Seele’s motion which is a motion to dismiss for

want of jurisdiction.

MR. SEELE: Your Honor, the motion is based on

three parts. It includes a Rule 12-B[13] motion for fail-

ure to state a cause of action against this defendant.

That is primarily based on our knowledge and the in-

formation that’s been provided to us, and we under-

stand is accurate from our client that the vessel was not

owned —

THE COURT: 12-B motion has to be predicated on

the pleadings. 12-B motion to dismiss has to be predi-

cated on the pleadings.

MR. SEELE: I undersiand, your Honor.

THE COURT: Well, you’re not talking about the

pleadings —

MR. SEELE: I just want to speak to that first and

then go into the other portion to bring something up to

the Court.

THE COURT: Right.

MR.SEELE: We donot own, operate or control the

vessel UKOLA. That is one of our positions.

37a

Secondly, we have moved to dismiss, to quash serv-

ice of the process upon the Farovi Shipping Company,

and this was made sometime in September of 1977 by

serving Gulf Coast Shipping Corporation which was

alleged to be their agent. Gulf Coast Shipping Corpora-

tion was a sub-agent for [14] the chartered vessel, or

for the charterer of the vessel. They were not appoint-

ed as an agent for service of process. And there isa line

of cases that hold that a port or agent cannot serve un-

less there’s been specific authority granted.

Thirdly, our motion also is to dismiss because we

submit that we are a Florida corporation, organized,

existing under the laws of the State of Florida. We are

not doing business in Texas, have not done business in

Texas, and that we are not amenable to personal juris-

diction of this court in accordance — even if service was

tried under 2031-B in thes revise statutes. We have

supported that by an affidavit by Frank Rosa who is the

president of Farovi Shipping Corporation which is in

support of the motion.

That is the crux of our motion that we filed on

November 1st of 1977 which, I believe, we brought to

the Court’s attention in March of ’78 at the last hear-

ing.

There were some interrogatories propounded to us,

we have answered those interrogatories yesterday in

the mail, and we now have received some opposition to

38a

the motion on the basis of the interrogatories. This is

the first notice [15] we had, and that was yesterday,

that our interrogatories were, according to Mr. Due’,

not sufficient. I bring this up because I am sure he is go-

ing to reply in that vein.

THE COURT: Your interrogatories or your

answers to interrogatories?

MR. SEELE: Our answers to interrogatories. We

have answered them to the best of our ability, who is

the president and the officers of Farovi Shipping Cor-

poration. We contend that we are not amenable to the

jurisdiction of this Court and this litigation is pending

there. The litigation pending in Florida, we are amen-

able to the jurisdiction of Florida. We have been served,

we have appeared in Florida. It would seem to us to

have this case tried in Florida as to Farovi and not here

in Texas where we have no contacts.

THE COURT: What's your response to that, Mr.

Due’? ‘

MR. DUE’: We get back again, may it please the

Court, to the real question of whois the equitable own-

er of the vessel UKOLA. We, of course, are in opposi-

tion to the motion to dismiss and would at this time

offer the discovery depositions that were taken of the

Farovi people {16] in Florida, being more particularly —

39a

MR. PALMINTER: They may be outside, your

Honor.

MR. DUE’: lamsorry, your Honor. Significantly in

the depositions and more particularly in the file of the

situation where we have various interests appearing.

In the Coast Guard record — once the ship went

down there is a Coast Guard notation which we, of

course, attach to our memorandum, and it’s a com-

munication that the Coast Guard received from

George Rosa, who is one of the officers of Farovi, with

their telephone number, and “UKOLA was our ship” is

the quote from it.

I say that for this reason, because, of course, if in-

deed Farovi is the owner behind the scenes of this situ-

ation then, of course, all of the activity that was done

which occurred here in Texas, a substantial trade of

business conducted in this jurisdiction, then, of course,

those acts likewise become the acts of Farovi.

The real question is who the equitable owner of the

vessel UKOLA is and was Farovi truly an agent as op-

posed toanequitable owner init. That question has still

not »een [17] resolved through any dilatory aspect,

from our standpoint.

Another interesting point brought out in the files it-

self of Farovi in Miami was a notation appearing there

after the vessel went down notifying San Miguel of the

40a

occurrence and then as a response, | forgot the exact

language because it appears in attachments to the dep-

osition which the Farovi lawyers in Miami are under a

Court order to produce for us and we have not gotten

them yet but, anyway, the point about San Miguel who

is an American citizen who lives in Puerto Rico, and we

have been trying to get his deposition in San Juan,

Puerto Rico and he has been dodging us on the thing, he

failed to show, supposed to be a health situation.

Now, the question was asked to Mr. Frank Rosa, Sr.,

the president, and to Junior “Do you know San

Miguel?”

“No, I don’t.”

Then he is confronted with the impeachable infor-

mation in his file and this is on this particular vessel

after the accident occurred, and, of course, the four

corners of the deposition will speak for themselves.

The point being there [18] has not been the candor and

the cooperation and the full disclosure on the part of

Farovi for the Court or for any of us.

THE COURT: I'll overrule Farovi’s motion at this

time, and submit me an order on that. I'll give you leave

to urge it against Mr. Seele when the facts are fully de-

veloped.

Is there anything else anyone wants to put on the

record with reference to this matter today?

4la

I take it by your silence that there is not, and so this

hearing will end.

REPORTER'S CERTIFICATE

I, F. Neil Robinson, Official Court Reporter for the

United States District Court for the Southern District

of Texas, appointed pursuant to the provisions of Title

28, L ited States Code, Section 753, do hereby certify

that the foregoing is a true and correct manuscript of

the proceedings had in the within entitled and num-

bered cause ou the date hereinbefore set forth. I do fur-

ther ce-tify that the foregoing transcript has been pre-

pared by me or under my direction.

Is| F. Neil Robinson

F. Neil Robinson

Official Court Reporter

1917 Bank of the Southwest Bldg.

Houston, Texas 77002

42a

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF TEXAS

GALVESTON DIVISION

MARIA FAMILIA DE BOOM, ETC, et al,

Plaintiffs,

versus C.A. No. C-77-28

AROSA MERCANTILE, S.A., et al,

Defendants.

MEMORANDUM OPINION AND FINDINGS OF FACT

RELATING TO DAMAGES ASSESSED IN CONNEC-

TION WITH DEFAULT ENTERED AGAINST AROSA

AND INVERSIONES CALMER

In connection with the assessment of damages

attributable to the deaths of the 9 seamen in question

and the damage to 1 survivor, the Court has before it

the deposition testimony relating to each of the indi-

vidual decedents. The damage findings expressed here-

in are predicated upon this deposition testimony and

the inferences which this Court draws from that testi-

mony.

EVIDENCE PRESENTED AND

GENERAL CONCLUSIONS

The Court here makes findings of fact based upon

abbreviated deposition testimony of relatives and de-

43a

pendents of the decedents, all seamen domiciled in the

Dominican Republic. Assessments of this nature would

be difficult, even if the witnesses were before the

Court in person. The difficulty is multiplied by the fact

that the decision must be based on deposition testi-

mony. In addition, it seems that either the translation

or the transcript of the depositions was far from ideal.

In addition, the difficulty is compounded by the fact

that defendants have offered no evidence and engaged

in only superficial cross-examination of the witnesses.

Nevertheless, there are sufficient facts before the

Court, in admissible form, to enable the Court to make

the findings of fact expressed herein.

The Court believes it appropriate to state initially

certain general conclusions.

The pecuniary value of these decedents’ lives is ap-

parently considerably less than the pecuniary value of

lives of seamen residing in more developed societies.

The lives of these seamen were, of course, infinitely

valuable to themselves and to their beneficiaries; how-

ever, from a pecuniary standpoint, these decedents and

the beneficiaries lived and live in a different world. This

perception may best be illustrated by the facts relating

to Mr. Hugo Boom. Hugo Boom was a stable, hard

working, steadily employed, seaman, married, a good

father to his children. He supported his family of seven

on a salary of approximately $300 per monthand made,

at the maximum, pecuniary contributions to the sup-

44a

port of his family of about $3,300 per year. Similarly,

Roman Nolosco supported eleven dependents by con-

tributions of $175 per month. This Court concludes

that a dollar in the Dominican Republic is, in compara-

tive terms, much more valuable than the same dollar in

the Continental United States. In fact, it would appear

that a dollar in the Dominican Republic is worth about

three times as much, in practical terms, as a dollar in the

Continental United States. For this reason, as well as

for the other reasons stated herein, the awards of dam-

ages set forth in these findings of fact may seem exces-

sively conservative in the light of cases like Denis v. Cen-

tral Gulf, 323 F.S. 943 (Eastern District of Louisiana,

1971); Law v. C. Drilling Corporation, 510 F.2nd 424 (Sth

Cir. 1975); Hamilton v. Canal Barge Lines, 395 F.Supp. 978

(Eastern District of Louisiana, 1975); and Higginbotham

0. Mobil Oil Corporation, 360 F.Supp. 1140 (Western Dis-

trict of Louisiana, 1973). This Court will attempt to

apply here the same basic analysis contained in the

cases cited; but this Court's findings are predicated

upon the hypothesis that the Dominican Republic is a

different economic world.

In the event the Court is mistaken in the basic con-

clusion stated in the previous paragraph, the Court will

allow counsel to re-open the evidence to present testi-

mony from economists or other experts to demon-

strate the error in the conclusions stated.

Another general conclusion which should be stated:

it is apparent from the reading of the depositions that

45a

there are vast differences in the character and tenden-

cies of the decedents. Hugo Boom, for example, was a

stable, married family man. Several of the decedents

were living with women to whom they were not mar-

ried or the fathers of numerous children, who have

never been legitimized. On the other hand, the deposi-

tion testimony indicates that many of these relation-

ships were stable and that the decedents were, in many

instances, devoted fathers to the children who were

produced from these unions. The Court must, to the

extent possible from the evidence presented, make

rational distinctions between the decedents.

With reference to the question of pain and suffer-

ing, the record before the Court is far from crystal

clear. On the other hand, it certainly appears to the

Court more probable than not that each of the dece-

dents, for at least some period of time before his death,

was conscious, did suffer from some period of intense

pain, suffering, and mental anguish. There would

appear to be no reason for distinctions between the

various decedents insofar as the assignment of the

pecuniary value for pain andsuffering is concerned. On

the authority of Law v. C. Drilling Corporation, supra., it

would appear that some figure in the range of $15,000

might be appropriate for the pain and suffering attrib-

utable to the death of each decedent; however, as stated

before, the Dominican Republic is a different eco-

nomic world, and the Court has therefore determined

(perhaps arbitrarily), that the damages for pain and

46a

suffering attributable to each decedent should not ex-

ceed $5,000 per decedent.

The Court finds the record before the Court less

than totally adequate; and for that reason, as set forth

in more detail below, the Court will allow the parties to

re-open the evidence, if they elect to do so in order to

clarify those aspects of the evidence which trouble the

Court. The inadequacies fall into several categories.

First, plaintiffs allege that the Court should assume

that each of the decedents would have a work expec-

tancy predicated on the assumption that the decedent

would work to age 64. It is apparent from the deposi-

tions that the decedents lived under conditions which,

in our society, would be deemed primitive, and were

probably not consistently afforded the degree of med-

ical care normal for persons regularly employed with-

in the continental limits of the United States. Accord-

ingly, it seems very doubtful that a Dominican seaman

has the same life or work expectancy as would the nor-

mal American worker. In the absence of evidence to the

contrary, however, the Court must assume a work ex-

pectancy based on the assumption that the Dominican

seaman would work to approximately age 64.

There is another aspect in which the record before

the Court is far from complete. This relates to the

manner of applying the discount factor in determining

the present cash value of the decedents’ future earn-

ings. Inthis connection, the Court judicially knows, ina

47a

very general way, that if a person has a work or life ex-

pectancy of approximately 20 years, the present cash

value of his earnings is approximately one-half of that

figure which would be obtained by multiplying a dece-

dent’s annual earnings by the number of years left in

his work expectancy. The Court has applied this rough

rule of thumb in

Decedent Hugo Boom Martinez. —

Hugo Boom Martinez, age 46, was second cook

aboard the vessel in question. He had been a seaman for

approximately 24 years and earned approximately

$333 per month, contributing approximately $300

to the support of his family.

Martinez, at the time of his death, had a stable mar-

riage to Maria Emilia Familia de Boom, the first named

plaintiff in this case, and the couple were the parents of

five children ranging in age from Carlos, 24 to Miguel

Boom Familia, age 7.

Mrs. Boom testified that her husband provided her

$300 per month almost every month. The court has

computed loss of support in the following manner:

$300 per month for 18 years is $64,800. The approxi-

mate present cash value of $300 per month for 18 years

is $32,400, which has been divided between the bene-

ficiaries in the manner set forth in the specific find-

ings.

48a

The court makes the following findings of fact with

reference to this decedent.

A. Maria Emilia Familia deBoom (widow of Hugo Boom

Martinez):

1. Loss of society

Loss of services

Loss of support (% of total)

> ©» N

Conscious pain and suffering

prior to death (1/6 of total)

$15,000.00

2,287.00

16,200.00

833.00

B. Miguel Antonio (son, six):

1. Loss of society

2. Loss of nurture and guidance

(12 years)

Loss of support (12/29 of half)

Conscious pain and suffering

(1/6 of total)

$34,320.00

$10,000.00

6,000.00

6,642.00

833.00

C. Carlos Miguel (son, nine):

1. Loss of society

2. Loss of nurture and

guidance (9 years)

3. Loss of support (9/29 of half)

4. Conscious pain and suffering

(1/6 of total)

$23,475.00

$10,000.00

4,500.00

5,022.00

833.00

D. Candida Rosa (daughter, fourteen):

1. Loss of society

2. Loss of nurture and guidance

(4 years)

$20,355.00

$10,000.00

2,000.00

49a

3. Loss of support (4/29 of total) 2,268.00

4. Conscious pain and suffering

(1/6 of total) 833.00

TOTAL ....+s.0s950eeeen Naas as $15,101.00

E. Narcisco (son, fourteen):

| 1. Loss of society $10,000.00

2. Loss of nurture and guidance

(4 years) 2,000.00

Loss of support (4/29 of total) 2,268.00

4. Conscious pain and suffering

(1/6 of total) 833.00

TOTAL ....«scs asain esa es $15,101.00

F. Carlos

1. Loss of society $10,000.00

2. Conscious pain and suffering

(1/6 of total) 833.00

TOTAL ....«dcnsaleuieeneeieaaenaie ss 6+ $10,833.00

Decedent Jose Alberto Velez. —

Jose Alberto Velez was, at the time of his death, 43

years old. The witness, who seeks to establish a claim

based upon contributions from Jose Alberto Velez

(hereinafter “this decedent”), was Inamina Fortuna.

Inamina Fortuna was not married to Jose Alberto

Velez. Inamina Fortuna testified that she was the wife

of the decedent, but admitted that no ceremonial wed-

ding had occurred. In addition, the deposition does not

establish the factual elements necessary to conclude

that a common-law marriage existed.

50a

The witness had living with her a 14 year old girl

named Milady Fortuna. The decedent was not the

father of Milady Fortuna, but, according to the wit-

ness, made monetary contributions to the witness and

to Milady Fortuna. The record is confusing because

Inamina Fortuna initially testified that Jose Velez was

the father of Milady Fortuna and then testified that he

was not.

The witness claimed that Jose Alberto Velez sent

money, in the range of $150 per month, to her regu-

larly. On the other hand, two letters placed in evidence

do not transmit $150. One sends 60 pesos and the other

sends $100. The witness also testified “last time he was

overseas he sent me $100.” (Depos. pg. 6)

The witness did not know how long the decedent had

been a seaman, how much time out of the year the de-

cedent spent in her home, whether the decedent had

other relatives or other children, and apparently knew

nothing of the details of the decedent’s life.

In addition, from the testimony of the witness, the

Court is able to conclude only that the decedent prob-

ably made casual and sporadic monetary contributions

to the witness in sums that cannot be measured with

any degree of accuracy. The testimony of this witness

is not sufficient for this Court to conclude that in

reasonable probability this witness and Milady For-

tuna have a legitimate claim for benefits from this de-

cedent’s death. Unless additional evidence is offered

5la

with reference to this decedent, therefore, it is the

Court’s intention to enter a take nothing judgment in

connection with the claimed beneficiaries of this dece-

dent.

The judgment to be prepared should provide that the

purported beneficiaries of Jose Alberto Velez take

nothing.

Decedent Luis Felipe Astacio. —

This decedent was a 44 year old seaman who had an

apparently stable relationship with Maria Garcia for

three years before his death. Decedent and Maria Gar-

cia were the parents of Cecilia Astacio. Decedent, ac-

cording to the deposition testimony, provided approx-

imately $250 per month toa household in which he re-

sided with Maria Garcia, Ercilia Santos and his daugh-

ter. It seems rational and consistent with the evidence

to attribute $75 per month to the support of dece-

dent’s daughter Cecilia Astacio. Decedent also acted as

an attentive father to daughter Cecilia and spent his

time in this household.

Decedent’ other daughter, Santa Bienvenida Men-

dez, is the child of decedent and Romanita Mendez. De-

cedent had not lived with Romanita Mendez since

1970. Decedent provided $75 per month support for

this daughter, had a good relationship with the daugh-

ter but had not visited the daughter for five months be-

fore his death. It seems probable that decedent’s prin-

52a

cipal efforts as a father were directed toward the

household in which he resided at the time of his death.

Decedent’s mother is Eusebia Astacio, whom he

visited monthly and to whom he occasionally made

financial contributions of indeterminate amounts.

The court’s reasoning on loss of support attribut-

able to this decedent is: Decedent was contributing

approximately $75 per month to the support of each of

his daughters, or $900 per year. The percent cash value

of $900 per year for 17 years is approximately $7,500.

The present cash value of $900 per year for S years is

approximately $4,000.

The evidence of financial regular contributions to de-

cedent’s mother is not sufficient to allow the court to

quantify such contributions.

A. Julia Cecilia (daughter of Luis Felipe

Astacio; 1 year old at time of death):

1. Loss of society $10,000.00

2. Loss of nurture and

guidance (17 years) 8,500.00

Loss of support 7,500.00

Conscious pain and suffering prior

to death (% of total) ___ 1,666.00

NN opie eee eee eee i ce ee ea $27,666.00

53a

B. Santa Bienvenida (daughter of

Luis Felipe Astacio; 13 years old

at time of death):

1. Loss of society $ 1,000.00

2. Loss of nurture and

guidance (5 years) 1,000.00

Loss of support 4,000.00

Conscious pain and suffering

prior to death (1/3 of total) 1,666.00

ESE tb cd pe Reasdkcne ews casa che cces aes $ 7,666.00

C. Eusebia Astacio (mother):

1. Loss of society $ 2,000.00

2. Loss of support

3. Conscious pain and suffering

prior to death (1/3 of total) 1,666.00

EE oe Ce eee tents a e e Y $ 3,666.00

Decedent Geronimo Encarnacion Figuereo. —

This decedent, 47, apparently had a stable relation-

ship with the mother of his five children and contrib-

uted $300 per month regularly to his family. The

court’s reasoning on support is: The approximate pres-

ent cash value of $3600 per annum for 17 years is

approximately $32,000. One half of this ($16,000)

would have gone to his children. With reference to this

decedent, the court finds the following damages:

54a

A. Anthony de Jesus (son, one year):

TOTAL

Loss of society

Loss of nurture and guidance

(18 years)

Loss of support (18/66 of one-half)

Conscious pain and suffering

(%4 of total)

rate a ee ee ee Oe ee

B. Pablo Francisco (son, one year):

Loss of society

Loss of nurture and guidance

(17 years)

Loss of support

(17/66 of total)

Conscious pain and suffering

(% of total)

ae ee ee ee Pe ee ee

C. Cayetano Miguel (son, two years):

TOTAL

Loss of society

Loss of nurture and guidance

(16 years)

Loss of support

(16/66 of total)

Conscious pain and suffering

(\% of total)

D. Virginia Cipriano (daughter, three):

Loss of society

Loss of nurture and guidance

(15 years)

Loss of support

(15/66 of total)

$10,000.00

9,000.00

4,320.00

___1,666.00

$24,986.00

$10,000.00

8,500.00

4,160.00

_____1,644.00

$24,304.00

$10,000.00

8,000.00

$10,000.00

7,500.00

3,680.00

55a

4. Conscious pain and suffering

(% of total) 1,644.00

PS fg ee a can eats an etalg ale $22,824.00

Decedent Ramon Carrasco Nolasco. —

The deposition testimony proves that this decedent,

age 47, much like Roberto Cruz (see discussion infra),

was a Stable seaman, consistently employed who had

lived with Olga Hernandez for 16 years and had sup-

ported and been an attentive father to their ten chil-

dren as well as making financial contributions, the

amount of whichis not determinable, to the support of

his mother. He provided $175 per month in support of

his family. The court’s computation of loss is based

upon the following reasoning: At least one-third of the

amount provided must have gone to the mother of

these children. The balance may appropriately be divid-

ed as indicated below, based on the assumption that the

present cash value of $175 per month for 16 years is ap-

proximately $22,000. The court finds the following

facts with reference to the beneficiaries of this dece-

dent:

A. Antonio Ramon (posthumous son):

1. Loss of society $10,000.00

2. Loss of nurture and guidance

(18 years) 9,000.00

3. Loss of support (18/109) 3,762.00

56a

4. Conscious pain and suffering

(1/11 of total)

B. Ramon Antonio (posthumous son):

1. Loss of society

2. Loss of nurture and guidance

(18 years)

3. Loss of support (18/109)

Conscious pain and suffering

(1/11 of total)

C. Saraya (daughter, one):

1. Loss of society

2. Loss of nurture and guidance

(17 years)

3. Loss of support (14/109 of total)

aes 6.8 2S 8.6.0 6:6 6 OS 9.8 9.6.4.2. 02°64 89

$10,000.00

9,000.00

3,769.00

$10,000.00

7,000.00

2,882.00

4. Conscious pain and suffering prior

to death (1/11 of total)

D. Roberto (son, five):

1. Loss of society

2. Loss of nurture and guidance

(13 years)

3. Loss of support

(13/109 of total)

4. Conscious pain and suffering

prior to death

E. July (daughter, ten):

1. Loss of society

2. Loss of nurture and guidance

(8 years)

ee a. ke a oe mw ee ee oe ee ee oe ee ee ee ee

454.00

...- $20,336.00

$10,000.00

6,500.00

2,661.00

—- |

.,.. $19,615.00

$10,000.00

4,000.00

57a

3. Loss of support

(8/109 of tota’ 1,552.00

4. Conscious pain and suffering prior

to death (1/11 of total) 454.00

Pita f | Serer rrrrrerr rer eT rest err es $16,006.00

F. Froncia (daughter, ten):

1. Loss of society $10,000.00

2. Loss of nurture and guidance

(8 years) 4,000.00

3. Loss of support

(8/109 of total) 1,552.00

4. Conscious pain and suffering prior

to death (1/11 of total) 454.00

pi OF * ARAB RR RGR rire Cee re rere eer eee fe $16,006.00

G. Miguelina (daughter, 12):

1. Loss of society $10,000.00

2. Loss of nurture and guidance

(6 years) 3,000.00

3. Loss of support

(6/109 of total) 1,330.00

4. Conscious pain and suffering prior

to death (1/11 of total) ____ 454.00

| rrr eer re eT ee rT rere. $14,784.00

H. Xionara (daughter, 14):

1. Loss of society $10,000.00

2. Loss of nurture and guidance

(4 years) 2,000.00

3. Loss of support

(4/109 of total) 887.00

4. Conscious pain and suffering prior

to death (1/11 of total) _ «454.00

Ee ey tre or aS we nana ead $13,341.00

58a

I. Adalgesia (daughter, 15):

1. Loss of society $10,000.00

2. Loss of nurture and guidance

(3 years) 1,500.00

3. Loss of support

(3/109 of total) 665.00

4. Conscious pain and suffering prior

to death (1/11 of total) _____ 454.00

itd Sere erent rt str eer eee $12,619.00

J. Carmen Nolasco (mother):

1. Loss of society $ 1,666.00

2. Loss of support

3. Conscious pain and suffering prior

to death (1/11 of total) 454.00

WE ase ease eubadebsareweceeew ccs $ 2,120.00

Decedent Jose Laluz Martino Salina. —

Salina, a 47 year old janitor aboard ship, had an ap-

parently stable relationship with deponent Ercilla Mar-

celino and the couple had five living children at the time

of decedent’s death. Salina contributed $150 per month

to the support of his family. The court’s reasoning on

loss of support is that the present cash value of $150

per month for 17 years is approximately $20,000.

Approximately one-third of this amount ($6,666) is

logically attributable to the mother and the balance

may be divided between the five children. The dam-

ages found by the Court attributable to this decedent

are:

59a

A. Jose (son, 9):

1. Loss of society $10,000.00

2. Loss of nurture and guidance

(9 years) 4,500.00

3. Loss of support

(9/27 of total) 7,920.00

4. Conscious pain and suffering prior

to death (1/6 of total) 833.00

NEO, euNeeskodswencseassavscvessecess $23,253.00

B. Aljondrina (daughter, 10):

1. Loss of society $10,000.00

2. Loss of nurture and guidance

(8 years) 4,000.00

3. Loss of support

(8/27 of total) 7,200.00

4. Conscious pain and suffering

(1/6 of total) 833.00

MEE, b0N50c0erseoestrsesscenussees see $22,033.00

C. Eduardo (son, 13):

1. Loss of society $10,000.00

2. Loss of nurture and guidance

(S years) 2,500.00

3. Loss of support

(5/27 of total) 4,560.00

4. Conscious pain and suffering

(1/6 of total) 833.00

MEMES wna sehsiesesserornessteueseasces $17,893.00

D. Porfiro (son, 15):

1. Loss of society $10,000.00

2. Loss of nurture and guidance

(3 years) 1,500.00

3. Loss of support

(3/27 of total)

2,640.00

60a

4. Conscious pain and suffering

(1/6 of total) 833.00

EE SURE E ieee er Sb rs S ceca seseesenes $14,973.00

E. Maria (daughter, 16):

1. Loss of society $10,000.00

2. Loss of nurture and guidance

(2 years) 1,000.00

3. Loss of support

(2/27 of total) 1,680.00

4. Conscious pain and suffering

(1/6 of total) 833.00

hades hana svd odsde ues eses $13,513.00

F. Maria Salina (mother):

1. Loss of society $1,666.00

2. Loss of support 240.00

3. Conscious pain and suffering 833.00

RO $ 2,739.00

Decedent Roberto Cruz. —

The deposition testimony of Rosa Cruz and Juana

Mercedes reveals that Roberto Cruz, 40, was a stable

seaman consistently contributing $185 per month to

Juana Mercedes, with whom he had lived for 18 years,

and their six children. This decedent also made regular

$15 per month payments to his mother, Rosa. Al-

though not married, this decedent had a stable rela-

tionship, an apparently consistent work history and

acted as a father to his six children. The court’s reason-

ing with reference to loss of support is: The present

61a

cash value of $185 per month for 24 years is approxi-

mately $27,000. Assuming that two-thirds of this was

attributable to decedent’s children is $17,820. In con-

formity with the general conclusions stated above the

court makes the following findings with reference to

this decedent:

A. Josaline (daughter, eight):

1. Loss of society $10,000.00

2. Loss of nurture and guidance

(10 years) 5,000.00

3. Loss of support

(10/33 of total) 5,346.00

4. Conscious pain and suffering prior

to death (1/7 of total of $5,000) _ sss: 714.00

ft oA eee enn eee ee ee eee $21,060.00

B. Angel (son, nine):

1. Loss of society $10,000.00

2. Loss of nurture and guidance

(9 years) 4,500.00

3. Loss of support

(9/33 of total) 4,811.00

4. Conscious pain and suffering prior

to death (1/7 of total) ___714.00

oe | See rere eee are $20,025.00

C. Ecly (son, eleven):

1. Loss of society $10,000.00

2. Loss of nurture and guidance

(7 years) 3,500.00

3. Loss of support

(7/33 of total) 3,742.00

62a

4. Conscious pain and suffering prior

to death (1/7 of total) 714.00

PE 666 Sy ve ein aG saab eueecae seu enss es $17,956.00

D. Jose (son, fourteen)

1. Loss of society $10,000.00

2. Loss of nurture and guidance

(4 years) 2,000.00

3. Loss of support

(4/33 of total) 2,138.00

4. Conscious pain and suffering prior

to death (1/7 of total) 714.00

os Vac CR ows 6400 0068 66 A000 cee $14,852.00

E. Elso (daughter, 16):

1. Loss of society $10,000.00

2. Loss of nurture and guidance

(2 years) 3,000.00

3. Loss of support

(2/33 of total) 1,069.00

4. Conscious pain and suffering prior

to death (1/7 of total) 714.00

ag a ed $14,783.00

F. Aldia (daughter, 17):

1. Loss of society $10,000.00

2. Loss of nurture and guidance

(1 year) 500.00

3. Conscious pain and suffering

(1/7 of total) a 714.00

eS ee $11,214.00

G. Rosa Cruz (mother):

1. Loss of society $ 1,666.00

2. Loss of support 1,482.45

63a

3. Conscious pain and suffering

prior to death 714.00

Decedent Ramon Santana Babi. —

Ramon Santana Babi was married (deposition of

Agustina Monegro at page 4 and supporting docu-

ment). He was thirty-two years of age at the time of his

death and had been a seaman for several years. (Depo-

sition of Victoria Santana at pages 4 and 7 and sup-

porting affidavit). At the time of his death he was pro-

viding his wife with $150.00 per month (see deposi-

tion of Fatima Monegro at page 12). (One child was

born posthumously). Ramon Santana also provided

support to his mother in the amount of approximately

$100.00 per month (see deposition of Victoria Santana

at page 6). Loss of support attributable to this dece-

dent is computed on the same basis as for the other

married decedents who made regular contributions to

the support of their families. The amounts which the

survivors of Ramon Santana Babi are entitled to re-

cover are as follows:

A. Fatima Monegro (widow of Ramon Santana Babi):

1. Loss of society $15,000.00

2. Loss of support (1/2 of total) 14,400.00

3. Conscious pain and suffering

prior to death (1/3 of total) ___ 1,606.66

TOTAL cc od ce cciks.. $31,066.66

64a

B. Ramona (posthumous daughter of Ramon

Santana Babi):

1. Loss of society $10,000.00

2. Loss of nurture and guidance

(18 years) 27,000.00

3. Loss of support (1/2 of total) 14,400.00

Conscious pain and suffering

prior to death (1/3 of total) 1,666.66

WOE Pe, Ai kh beads C4 dbase ea seerans $53,066.66

C. Victoria Santana (dependent mother of

Ramon Santana Babi):

1. Loss of society $ 5,000.00

2. Loss of support 7,200.00

3. Conscious pain and suffering

prior to death (1/3 of total) 1,666.66

WRPROE 5555 eer chasdnartenetivessseg des $13,866.66

Decedent Leon Leazard Chevalier. —

This decedent was the 59 year old radio operator. He

left a wife and six children, three of whom were adults,

and a partially dependent mother. He contributed

$350.00 per month to the support of his family. The

court’s reasoning as to loss of support is: The present

cash value of $350.00 per month for five years is $21,-

000.00. The court finds the following damages attrib-

utable to this decedent:

A. Orfelina Mercado Leazard (widow)

1. Loss of society $15,000.00

2. Loss of services 923.00

65a

Loss of support (1/2 of total)

Conscious pain and suffering

prior to death (1/8 of total)

B. Miguelina Jocelin (daughter, 15)

é.

TOTAL

Loss of society

Loss of nurture and guidance

(three years)

Loss of support (1/2 of 1/2 of

total)

Conscious pain and suffering

prior to death (1/8 of total)

teen Uae ere eo ee eee ee a ee ee ee fe i we we

Jocelin Miguelina (daughter, 15)

Loss of society

Loss of nurture and guidance

(three years)

Loss of support (1/2 of 1/2 of

total)

Conscious pain and suffering

prior to death (1/8 of total)

Zawe eee eeu S TELE ge eee ee eat ee a eS oe oe

D. Freddys Ramon (adult son)

Loss of society

Conscious pain and suffering

prior to death (1/8 of total)

eee se ee ee es ee oe ow oe en a oe oe ak a i ee

Mercedes Altagracia (adult daughter)

Loss of society

10,500.00

___ 625.00

$27,048.00

$10,000.00

1,500.00

4,036.63

625.00

$16,761.63

$10,000.00

1,500.00

4,636.63

__ 625.00

$16,761.63

$ 5,000.00

- } bhar:inre

2. Conscious pain and sufte :

prior to death (1/8 of tota 625 00

56 7 | aes cart > 5.02

F. Juan Duff (adult son

1 Loss of society > 5,0

2. Conscious pain and sufferin

prior to death (1/8 of tot 62

(iif | ae $ 5.6250

} ] ’

G. Socrates Manuel (adult son

l Loss of soc ety $ 5.000 0

2. Conscious pain and suffering

prior to death (1/8 of total! 625.00

EU. “acbuwieeusekun eye paneer S$ 5,625.0

H. Altragracia Chevalier Leazard

(mother, past age 64

1 Loss of society $ 1.6600

2. Loss of support S$ 1

3. Conscious pain and suffering

prior to death (1/8 of total 62

pi ft rrr re $ 3,49

Decedent Eduardo Tavarez Abreu

This decedent, age 25. was the First Officer ot the

UKOLA. An educated man, he was legally married

making a salary of $1,000 per month and from his ed

cation and age faced a bright future. Unlike the othe:

decedents, one may logically and properly inte

this decedent’s earning capacity would increase wit!

67a

his maturity. The damages which the court finds are

payable to his beneficiaries are:

A. Rosa Maria Peina Tavarez (widow)

1. Loss of society $15,000.00

2. Loss of services 13,184.24

3. Loss of support (1/2 of total) 117,000.00

4. Conscious pain and suffering

prior to death (1/2 of total) 2,500.00

pg.” Meee a heen e her eee, ee ee eee $147,684.24

B. Eduardina (posthumous child)

1. Loss of society $10,000.00

2. Loss of nurture and guidance

(18 years) 27,000.00

3. Loss of support (1/2 of total) 117,000.00

Conscious pain and suffering

prior to death (1/2 of total) 5,000.00

8, | Saran e res tray Peer Lee $159,000.00

Survivor Joaquin Salvador Facundo Melo. —-

Joaquin Salvador Facundo Melo is one of three sur-

vivors of the disaster which befell the M/V UKOLA. He

served aboard the vessel as Second Officer. As can be

seen from Exhibit C, excerpts from Mr. Facundo Melo’s

deposition taken in Civil Action No. H-77-124 in the

District Court for the Southern District of Texas,

Houston Division, he underwent fear of death as well

as considerable pain and suffering before he was re-

trieved from the waters of the Gulf of Mexico. This

—

plaintiff should recover $2,500.00 for physical pain and

suffering as well as mental anguish and distress.

CONCLUSION

Either party who wishes to re-open the evidence for

the purpose of introducing additional evidence should

so move within five (5) working days after receipt of

these findings. If no motion to re-open is made, coun-

sel for plaintiff should, within fifteen (15) days, submit

a form of judgment consistent with this order and this

court’s previous orders.

Signed at Houston, Texas, this the 17th day of

November, 1978.

Is} FINIS E. COWAN

UNITED STATES DISTRICT

JUDGE

TRUE COPY I CERT'FY

ATTEST:

V. BAILEY THOMAS, CLERK

Is} Edith Rogers

Deputy Clerk

69a

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF TEXAS

GALVESTON DIVISION

MARIA FAMILIA DE BOOM ETC., et al,

Plaintiffs,

versus C.A. No. G-77-28

AROSA MERCANTIL, S.A., et al,

Defendants.

Filed: December 26, 1978

SUPPLEMENTAL MEMORANDUM OPINION AND

FINDINGS OF FACT RELATING TO DAMAGES

ASSESSED IN CONNECTION WITH DEFAULT

ENTERED AGAINST DEFENDANTS, AROSA

MERCANTIL, S.A. AND INVERSIONES CALMER S.A.

It has been brought to the attention of the Court that

there was inadverently omitted in the memorandum

opinion and findings of fact relating to damages pre-

viously signed in the above numbered and entitled pro-

ceeding on November 17, 1978 and filed on November

20, 1978, an appropriate award of damages for Carlos,

minor son of decedent, Ramon Carrasco Nolasco.

Moreover, the itemization of awards of damages for

the daughter, Soraya, of the same aforementioned de-

cedent as set forthinthe same memorandum opinion is

erroneous in certain respects. Accordingly, the Court

70a

herewith enters the following supplemental and re-

vised findings respecting decedent Ramon Carrasco

Nolasco and his surviving dependents in substitution

of the findings pertaining to this decedent as contain-

ed on pages 10 through 13 of the previously signed and

filed memorandum opinion:

Decedent Ramon Nolasco. —

The deposition testimony proves that this decedent,

much like Roberto Cruz (see discussion infra), was a

stable seaman, consistently employed who had lived

with Olga Hernandez for 16 years and had supported

and been an attentive father to their ten children as

well as making financial contributions, the amount of

which is not determinable, to the support of his

mother. He provided $175 per month in support of his

family. The court’s computation of loss is based upon

the following reasoning: At least one-third of the

amount provided must have gone to the mother of

these children. The balance may appropriately be divid-

ed as indicated below, based on the assumption that the

present cash value of $175 per month for 16 years is

approximately $22,000. The court finds the following

facts with reference to the beneficiaries of this dece-

dent:

71a

A. Antonio Ramon (posthumous son):

1. Loss of society $10,000.00

2. Loss of nurture and guidance

(18 years) 9.000.00

3. Loss of support (18/109) 3,765.00

4. Conscious pain and suffering

(1/11 of total) 454.00

TOFU pan sctcccecsviwevedecsvecaeveses $22,223.00

B. Ramon Antonio (posthumous son):

1. Loss of society $10,000.00

2. Loss of nurture and guidance

(18 years) 9,000.00

Loss of support (18/109) 3,769.00

Conscious pain and suffering

(1/11 of total) __ 454.00

oy) ee er ert te? Peer ree ce $23,223.00

C. Soraya (daughter, one):

1. Loss of society $10,000.00

2. Loss of nurture and guidance

(17 years) 8,500.00

3. Loss of support (17/109 of

total) 3,431.00

4. Conscious pain and suffering prior

to death (1/11 of total) ___ 454.00

(2a, Meee error eee Te eee T rere ST eee $22,385.00

D. Carlos (son, four):

1. Loss of society

2. Loss of nurture and guidance

(14 years)

3. Loss of support (14/109

of total)

$10,000.00

7,000.00

2,882.00

72a

4. Conscious pain and suffering prior

to death (1/11 of total) ___ 454.000

pie 8 Sere errr re err re er ee ey $20,336.00

E. Roberto (son, five):

1. Loss of society $10,000.00

2. Loss of nurture and guidance

(13 years) 6,500.00

3. Loss of support

(13/109 of total) 2,661.00

4. Conscious pain and suffering prior

to death ____ 454.00

ocd | i errr ter roe erie $19,615.00

F. July (daughter, ten):

1. Loss of society $10,000.00

2. Loss of nurture and guidance

(8 years) 4,000.00

3. Loss of support

(8/109) 1,552.00

4. Conscious pain and suffering prior

to death (1/11 of total) 454.00

tie) er ere rT ere rer er Te $16,006.00

G. Froncia (daughter, ten):

1. Loss of society $10,000.00

2. Loss of nurture and guidance

(8 years) 4,000.00

3. Loss of support

(8/109) 1,552.00

4. Conscious pain and suffering prior

to death (1/11 of total) 454.00

EE CRC POOR nen oe arr aan te $16,006.00

73a

H. Miguelina (daughter, 12):

Loss of society $10,000.00

2. Loss of nurture and guidance

(6 years) 3,000.00

3. Loss of support

(6/109 of total) 1,330.00

4. Conscious pain and suffering prior

to death (1/11 of total) 454.00

Py 6h e e660 CRD ore rrrsarenceoseresess $14,784.00

I. Xionara (daughter, 14):

1. Loss of society $10,000.00

2. Loss of nurture and guidance

(4 years) 2,000.00

3. Loss of support

(4/109 of total) 887.00

4. Conscious pain and suffering prior

to death 454.00

A re $13,341.00

J. Adalgesia (daughter, 15):

1. Loss of society $10,000.00

2. Loss of nurture and guidance

(3 years) 1,500.00

3. Loss of support

(3/109 of total) 665.00

4. Conscious pain and suffering prior

to death (1/11 of total) 454.00

rer rere ere rre reer $12,619.00

K. Carmen Nolasco (mother):

1. Loss of society $ 1,666.00

2. Loss of support

3. Conscious pain and suffering prior

to death (1/11 of total) 454.00

a a EERE EET eee e $ 2,126.00

74a

Furthermore, and in accordance with the discretion

vested in this Court, pre-judgment interest at the rate

of nine percent (9%) per annum from date of the loss

herein (January 19, 1977), until paid will be awarded on

all of the principal awards of damages. Cf. Socony Mobil

Oil Company, Inc. v. Texas Coastal and International, Inc., 559

F.2d 1008 (5 Cir. 1977); National Air Lines, Inc. v. Stiles, 268

F.2d 400 (5 Cir. 1959), certiorari denied, 361 U.S. 88, 80

5.Ct. 157.

Signed at Galveston, Texas, this 26th day of Decem-

ber, 1978.

Is} FINIS E. COWAN

UNITED STATES DISTRICT

JUDGE

SEAL

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF TEXAS

GALVESTON DIVISION

MARIA FAMILIA DE BOOM, ETC., ET AL,

versus C.A. No. G-77-28

AROSA MERCANTIL, S.A., ET AL

JUDGMENT

Plaintiffs’ motion for default judgment on the issue

of liability was granted by the Court, rendered on

75a

March 8, 1978 and signed on March 15, 1978 by Honor-

able Finis E. Cowan, and, on March 8, 1978, the Court

set for hearing on May 9, 1978, the determination of

damages in the case. Plaintiffs’ subsequent motion for

similar default judgment on the issue of liability against

defendant, Inversiones Calmer, S.A., was also set for

hearing on May 9, 1978. On May 9, 1978, the plaintiffs’

evidence argument on damages were considered along

with plaintiff's motion for default judgment against de-

fendant, Inversiones Calmer, S.A., and the motion by

defendant, Arosa Mercantil, S.A., to set aside default

judgment. The Court, for reasons assigned, granted

the motion of plaintiffs for default judgment against

defendant, Inversiones Calmer, S.A., denied the

motion of defendant, Arosa Mercantil, S.A., to set aside

default judgment on the issue of liability previously

rendered against it, ard took under advisement, with

request for memoranda of authorities, the determina-

tion of damages to be awarded jointly and severally and

in solido against defendants, Arosa Mercantil, S.A. and

Inversiones Calmer, S.A.

Having considered the evidence and the arguments

of counsel, the law and the evidence being in favor

thereof, in accordance with memorandum opinion and

findings of fact relating to damages previously render-

ed and of record herein:

IT IS ORDERED AND ADJUDGED that the plain-

tiff, Maria Emilia Familia deBoom, widow of Hugo

76a

Boom Martinez, recover from defendants, Arosa Mer-

cantil, S.A. and Inversiones Calmer, S.A., jointly and

severally and in solido, the sum of One Hundred Eight

Thousand Three Hundred Fifty Two Dollars ($108,-

352.00), said sum to be apportioned as provided here-

inbelow, together with legal interest thereon at the

rate of nine percent (9%) per annum from date of loss

(January 19, 1977) until paid and all costs of these pro-

ceedings:

A. Maria Emilia Familia deBoom,

widow of Hugo Martinez,

individually: $34,320.00

B. Maria Emilia Familia deBoom,

as natural tutrix of the minor child of

Hugo Boom Martinez, Miguel

Antonio Boom Familia: $23,475.00

C. Maria Emilia Familia deBoom, as natural

tutrix of the minor child of Hugo Boom

Martinez, Carlos Miguel Boom Familia: $20,355.00

D. Maria Emilia Familia deBoom, as natural

tutrix of the minor child of Hugo Boom

Martinez, Candida Rosa Boom Familia: $15,101.00

E. Maria Emilia Familia deBoom, as natural

tutrix of the minor child of Hugo Boom

Martinez, Narcisco Boom Familia: $15,101.00

IT IS FURTHER ORDERED AND ADJUDGED that

the plaintiff, Carlos Eusebio Boom Familia, major son

of Hugo Boom Martinez, recover of the defendants,

Arosa Mercantil, S.A. and Inversiones Calmer, S.A.,

jointly and severally and in solido, the sum of Ten

77a

Thousand Eight Hundred Thirty-Three Dollars ($10,-

833.00), together with legal interest thereon at the rate

of nine percent (9%) per annum from date of the loss

(January 19, 1977) until paid and all costs of these pro-

ceedings.

IT 1S FURTHER ORDERED AND ADJUDGED that

the plaintiff, Enemena Fortuna, individually and as nat-

ural tutrix of the minor, Miledy Fortuna, alleged de-

pendents of Jose Alberto Velez, take nothing and their

claims against defendants, Arosa Mercantil, S.A. and

Inversiones Calmer, S.A., be and they are hereby dis-

missed.

IT IS FURTHER ORDERED AND ADJUDGED that

plaintiff, Marie Alejandrina Leon Garcia, as natural

tutrix of the minor child of Luis Felipe Astacio, Julia Ce-

cilia Astacio, recover of the defendants, Arosa Mer-

cantil, S.A. and Inversiones Calmer, S.A., jointly and

severally and in solido, the sum of Twenty-Seven

Thousand Six Hundred Sixty-Six Dollars ($27,666.00),

together with legal interest thereon at the rate of nine

percent (9%) per annum from date of loss (January 19,

1977) until paid and all costs of these proceedings.

[TIS FURTHER ORDERED AND ADJUDGED that

the plaintiff, Ramonita Mendez, as natural tutrix of the

minor child of Luis Felipe Astacio, Santa Bienvenida

Mendez, recover of the defendants, Arosa Mercantil,

S.A. and Inversiones Calmer, S.A., jointly and several-

78a

ly and in solido, the sum of Seven Thousand Six Hun-

dred Sixty-Six Dollars ($7,666.00) together with legal

interest thereon at the rate of nine percent (9%) pet

annum from date of loss (January 19, 1977) until paid

and all costs of these proceedings.

ITIS FURTHER ORDERED AND ADJUDGED that

the plaintiff, Eusebia Astacio, surviving dependent

mother of decedent, Luis Felipe Astacio, individually

recover of the defendants, Arosa Mercantil, S.A. and

Inversiones Calmer, S.A., jointly and severally and in

solido, the sum of Three Thousand Six Hundred Six-

ty-Six Dollars ($3,666.00), together with legal interest

thereon at the rate of nine percent (9%) per annum

from date of the loss (January 19, 1977) until paid and

all costs of these proceedings.

IT IS FURTHER ORDERED AND ADJUDGED that

the plaintiff, Pastora Guillandeau, as natural tutrix of

the minor children of Geronimo Encarnacion Figue-

reo, recover of the defendants, Arosa Mercantil, S.A.

and Inversiones Calmer, S.A., jointly and severally and

in solido, the sum of Ninety-Five Thousand Five Hun-

dred Ninety-Eight Dollars ($95,598.00), said sum to be

apportioned as provided hereinbelow, together with

legal interest thereon at the rate of nine percent (9%)

per annum from date of loss (January 19, 1977) until

paid and all costs of these proceedings:

79a

A. Pastora Guillandeau, as natural tutrix

of the minor child of Geronimo

Encarnacion Figuereo, Adonay deJesus

Encarnacion Guillandeau $24,986.00

B. Pastora Guillandeau, as natural tutrix

of the minor child of Geronimo

Encarnacion Figuereo, Pablo Francisco

Encarnacion Guillandeau $24,304.00

C. Pastora Guillandeau, as natural tutrix

of the minor child of Geronimo

Encarnacion Figuereo, Cayetano Miguel

Encarnacion Guillandeau $23,484.00

D. Pastora Guillandeau, as natural tutrix

of the minor child of Geronimo

Encarnacion Figuereo, Virginia

Cipriana Guillandeau $22,824.00

IT IS FURTHER ORDERED AND ADJUDGED that

the plaintiff, Olga Hernandez, as natural tutrix of the

minor children of Ramon Carrasco Nolasco, recover of

the defendants, Arosa Mercantil, S.A. and Inversiones

Calmer, S.A., jointly and severally and in solido, the

sum of One Hundred Eighty-One Thousand Five Hun-

dred Thirty-Eight Dollars ($181,538.00), said sum to be

apportioned as provided hereinbelow, together with

legal interest thereon at the rate of nine percent (9%)

per annum from date of loss (January 19, 1977) until

paid and all costs of these proceedings:

A. Olga Hernandez, as natural tutrix of the

minor child of Ramon Carrasco Nolasco,

Antonio Ramon Carrasco Nolasco $23,223.00

B. Olga Hernandez, as natural tutrix of the

minor child of Ramon Carrasco N

Ramon Apr‘ onio Carrasco $

C. Olga Hernandez, as natural tu

minor child of Ramon Carrasco N

Soraya Carrasco Nolasco $2

D. Olga Hernandez, as natural tutrix of the

minor child of Ramon Carrasco Nolas

Carlos Carrasco Nolasco $2

E. Olga Hernandez, as natura! tutrix of the

minor child of Ramon Carrasco Nolase:

Robert 9 Carrasco Nolasco $19

F. Olga Hernandez, as natural tutrix of the

minor child of Ramon Carrasco Nolasco

July Carrasco Nolasco $10,00¢

G. Olga Hernandez, as natural tutrix of the

minor child of Ramon Carrasco Nolasco

Francia Carrasco Nolasco $16,006

H. Olga Hernandez. as natural tutrix of the

minor child of Ramon Carrasco Nolas«

Miguelina Carrasco Nolasco $14,784

I. Olga Hernandez, as natural tutrix of the

minor child of Ramon Carrasco Nolas«

Xionara Carrasco Nolasco $13,341

J. Olga Hernandez, as natural tutrix of the

minor child of Ramon Carrasco Nolasco

Adalgesa Carrasco Nolasco $12,619.00

ITIS FURTHER ORDERED AND ADJUDGED that

the plaintiff, Carmen Nolasco, dependent mother of

Ramon Carrasco Nolasco, recover of the defendants

Arosa Mercantil, S.A. and Inversiones Calmer, S.A

jointly and severally and in solido, the sum of Ty

Thousand One Hundred Twenty Dollars ($2,120 0

together with legal interest thereon at the rate of :

8la

percent (9%) per annum from date of loss (January 19,

1977) until paid and all costs of these proceedings.

IT IS FURTHER ORDERED AND ADJUDGED that

the plaintiff, Ercelina Marcelino, as natural tutrix of

the minor children of Jose Laluz Martino Sabino, re-

cover of the defendants, Arosa Mercantil, S.A., and In-

versiones Calmer, S.A., jointly and severally and in

solido, the sum of Ninety-one Thousand Six Hundred

Sixty-Five ($91,665.00), said sum to be apportioned as

provided hereinbelow, together with legal interest

thereon at the rate of nine percent (9%) per annum

from date of loss (January 19, 1977) until paid and all

costs of these proceedings:

A. Ercelina Marcelino, as natural tutrix

of the minor child of Jose Laluz

Martino Sabino, Jose Marcelino $23,253.00

B. Ercelina Marcelino, as natural tutrix

of the minor child of Jose Laluz

Martino Sabino, Alejandrina Marcelino $22,033.00

C. Ercelina Marcelino, as natural tutrix

of the minor child of Jose Laluz

Martino Sabino, Eduardo Marcelino $17,893.00

D. Ercelina Marceliro, as natural tutrix

of the minor child of Jose Laluz

Martino Sabino, Porfirio Marcelino $14,973.00

E. Ercelina Marcelino, as natural tutrix

of the minor child of Jose Laluz

Martino Sabino, Maria Marcelino $13,513.00

82a

IT IS FURTHER ORDERED AND ADJUDGED that

the plaintiff, Maria Sabino, dependent mother of Jose

Laluz Martino Sabino, recover of the defendants,

Arosa Mercantil, S.A. and Inversiones Calmer, S.A.,

jointly and severally and in solido, the sum of Two

Thousand Seven Hundred Thirty Nine Dollars ($2,-

739.00), together with legal interest thereon at the rate

of nine percent (9%) per annum from date of loss (Jan-

uary 19, 1977) until paid and all costs of these proceed-

ings.

IT IS FURTHER ORDERED AND ADJUDGED that

the plaintiff Juana Mercedes, as natural tutrix of the

minor children of Roberto Cruz, recover of the de-

fendants, Arosa Mercantil, S.A. and Inversiones

Calmer, S.A., jointly and severally and in solido, the

sum of Ninety-Nine Thousand Eight Hundred Ninety

Dollars ($99,890.00), said sum to be apportioned as

provided hereinbelow, together with legal interest

thereon at the rate of nine percent (9%) per annum

from date of loss (January 19, 1977) until paid and all

costs of these proceedings:

A. Juana Mercedes, as natural tutrix

of the minor child of Roberto Cruz,

Josaline Cruz Mercedes $21,060.00

B. Juana Mercedes, as natural tutrix

of the minor child of Roberto Cruz,

Angel Cruz Mercedes $20,025.00

C. Juana Mercedes, as natural tutrix

of the minor child of Roberto Cruz,

Edy Cruz Mercedes $17,956.00

83a

D. Juana Mercedes, as natural tutrix

of the minor child of Roberto Cruz,

Jose Cruz Mercedes $14,852.00

E. Juana Mercedes, as natural tutrix

of the minor child of Roberto Cruz,

Elsa Cruz Mercedes $14,783.00

F. Juana Mercedes, as na

This text is long and has been trimmed here. Open the source document for the complete record.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.