Amicus Curiae Brief — American Dredging Co. v. Miller
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No. 91-1950 J i
IN THE
Supreme Court of the United States
OCTOBER TERM 1991
>
AMERICAN DREDGING COMPANY,
Petitioner.
—vV —
WILLIAM ROBERT MILLER,
Respondent
ON PETITION FOR A WRIT OF CERTIORARI
TO THE SUPREME COURT OF LOUISIANA
BRIEF OF THE MARITIME LAW ASSOCIATION OF THE
UNITED STATES, AS AMICUS CURIAE, IN SUPPORT
OF THE PETITION FOR A WRIT OF CERTIORARI
LIZABETH L. BURRELL
Counsel of Record
GEORGE W. HEALY, III
One Battery Park Plaza
New York, New York 10004
(212) 422-7585
Attorneys for the Maritime Law
Association of the United States,
Applicant for Leave to File Brief
as Amicus Curiae
i
QUESTION OF LAW PRESENTED
Whether the doctrine of forum non conveniens as applied by
the federal courts in admiralty cases must be applied to mar-
itime claims filed in state courts.
ii
TABLE OF CONTENTS
PAGE
Question of Law Presented.............. cece ee eeeeneeeeees i
Table Of Authorities. ........cccccvecscccccvcevccescceseees iv
Interest Of Amicus CUTide ...... 6.6 cece cece eee e eee eennnes 2
Summary of Reasons for Granting the Writ............... 5
Reasons for Granting the WIil ............0ceeee cece eee eee 6
I. THE CONFLICT BETWEEN THE FEDERAL
AND STATE COURTS IS PERSISTENT AND
VEXING ....ccccccccccvccccccccccccsccccssevcess 6
Il. THE CONFLICT IS AN IMPEDIMENT TO
INTERSTATE AND INTERNATIONAL COM-
III. THIS COURT SHOULD UPHOLD THE PRIN-
CIPLE OF UNIFORMITY OF MARITIME
LAW 2. ccccccccvcececcsecsecccccnsnennneenennenee 10
A. The Intent to Maintain National Uniform-
ity Was Confirmed in the Constitution .... 10
B. Although Congress Has Delegated a Por-
tion of Admiralty Law Jurisdiction to the
State Courts, They Are Required to Apply
Federal Admiralty Law .............++ee00- 11
C. Application of the Forum Non Conveniens
Doctrine Cannot Be Avoided By Character-
izing It as “Procedural.” ............+++e0+. 12
D. The Doctrine of Forum Non Conveniens Is
a “Characteristic Feature” of the Maritime
Law which Must Be Applied in Maritime
Cases Such as the One Before this Court ..
IV. UNIFORMITY REQUIRES THAT IN MARI-
TIME CASES, FEDERAL DOOR-CLOSING
MEASURES, SUCH AS FORUM NON CONVE-
NIENS, ARE BINDING ON THE ST
COURTS =
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ne ee
ee
+e we eee
Conclusion
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“ee.
eeeeeeeeeeeeseeeeseseeeeeses
ee ee ee eee
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eeereeeeeeeeeeeeeeeseeeeeese
**
13
iv
TABLE OF AUTHORITIES
Cases: PAGE
Alcoa Steamship Co. v. M/V NORDIC REGENT, 654 F.2d
147 (2d Cir.), cert. denied, 449 U.S. 890 (1980) ...8, 14
Argyll Shipping Co. v. Hanover Insurance Co., 297 F.
Supp. 125 (S.D.N.Y. 1968)...... 0.0.6 ceeeeee eee ee ees 7
Askew v. American Waterways Operators, Inc., 411 U.S.
SOG COUN ccvccccccesccdscccecsncsocuesonesocesoseese a
Black Diamond Steamship Corp. v. Robert Stewart &
Sons, Ltd., 336 U.S. 386 (1949)... 02... cece cece ee eees 7
. lavo Growers of California v. Generali Belgium, 632
F.2d 963, 1980 AMC 1993 (2d Cir. 1980), cert.
denied, 449 U.S. 1084 (1981)........0cceccceeeeeees: 7
Camejo v. Ocean Drilling & Exploration, 838 F.2d 1374
(Sala Sie. UDGED «oc cccccdccccccccccccccccccscccccccoces 6
Canada Malting Co. v. Paterson Co., 285 U.S. 413
CBDR oc ccccccccccccccccccccccccccescceccssscsocescocs 15
Chick Kam Choo v. Exxon Corp., 486 U.S. 140 (1988)... 4
Exxon Corp. v. Chick Kam Choo, 817 F.2d 307 (Sth Cir.
1987), rev'd on other grounds, 486 U.S. 140 (1988),
appeal after remand, 821 S.W.2d 190 (Tex. App.
14th Dist. 1991), writ granted, 35 Tex. Sup. Ct. J.
GBS CIDDED cc cccccccccccccccccccccecccccccceces 6,9, 10, 13
Galban Lobo Trading Co. v. Canadian Leader Ltd., 1963
AMC 988 (S.D.N.Y. 1958) ...... 0.6.0 cece cece eee eeeee 7
Garrett v. Moore-McCormack Co., 317 U.S. 239 (1942).. 12
Green v. Industrial Helicopters, Inc., 593 So.2d 634
LB. 1GBE) on ccccccccccccccccccccccccccccccscccessess 4,10
PAGE
Guaranty Trust Co. v. York, 326 U.S. 99 (1945)........ 12, 13
Gulf Oil Corp. v. Gilbert, 330 U.S. 501 (1947) ........... 15
Hanna v. Plumer, 380 U.S. 460 (1965).................... 13
Ikospentakis v. Thelassic Steamship Agency, 915 F.2d 176
I I sis neil ced cca dicienteinrinaen in 6,7, 13
Kassapas v. Arkon Shipping Agency, 485 So.2d 565 (La.
Ct. App. Sth Cir.), writ denied, 488 So.2d 203 (La.),
cert. denied, 479 U.S. 940 (1986).................... 6
Knickerbocker Ice Co. v. Stewart, 253 U.S. 149
SI Gcedeibinnbdhedeiiddiiadiminnenieaiomesestias 8-9, 15
Lindgren v. United States, 281 U.S. 38 (1930)............ 1S
Markzannes v. Bermuda Star Line, Inc., 545 So.2d 537
(La. 1989), cert. denied sub nom. Bermuda Star Line,
Inc. v. Markozannes, 493 U.S. 1043 (1990).......... 6
Matson Navigation Co. v. Stal-Laval Turbin AB, 609 F.
Supp. 579, 1985 AMC 2381 (N.D. Cal. 1985) ....... 7
Missouri v. Mayfield, 340 U.S. 1 (1950) .................. 15
Mitsubishi Motors Corp. v. Soler Chrysler Plymouth, Inc.,
EERE SU ee ene auna 14
Ocean Shelf Trading v. Flota Mercante Grancolumbiana,
638 F. Supp. 249, 1986 AMC 2482 (S.D.N-Y.
Sadedeabenimhbesebiaaduidemendiiinidinede vcs 7
Offshore Logistics, Inc. v. Tallentire, 477 U.S. 207
Siidbetnentaisdndenitnsdamueanmmedbenaaniieelidus a
Panama Railroad Co. v. Johnson, 264 U.S. 375 (1924)... 12
Piper v. Reyno, 454 U.S. 235 (1981) .... 2.0... ccce ee. 15
Ray v. Atlantic Richfield Co., 435 U.S. 151 a 4
vi
PAGE
Red Sea Insurance v. S.S. LUCIA DEL MAR, 1983 AMC
1630 (S.D.N.Y. 1982), aff'd, 1983 AMC 1631 (2d
Cie, SDDS oc cccccccccccccccccccccccscoccceMecccccsess 7
Southland v. Keating, 465 U.S. 1 (1984) ...........05+- 14, 15
Testa v. Katt, 330 U.S. 386 (1947) ..... 0... ccc cece cee eee 15
The BREMEN v. Zapata Off-Shore Co., 407 U.S. 1 (1972). 14
The HINE v. Trevor, 71 U.S. (4 Wall.) 555 (1867)......... 15
The LOTTAWANNA, 88 U.S. (21 Wall.) 558 (1875)......... »
The MOSES TAYLOR, 71 U.S. (4 Wall.) 411 (1867) ........ 15
The WILJA, 113 F.2d 646 (2d. Cir.), cert. denied sub nom.
O/Y Wipu v. Dreyfus, 311 U.S. 687 (1940)........... 7
Tramp Oil v. MERMAID |, 743 F.2d 48, 1985 AMC 459 (ist
Che, BBE cc cccceccccccscccccssosecececsccncesscccecce 7
Wall Street Traders Inc. v. Sociedad Espanola de
Construccion Naval, 245 F. Supp. 344 (S.D.N.Y.
BIGED. ccccoccccescscccsccccccoscesescccccccosccosooses 7
Willendson v. Forsoket, 29 F. Cas. 1283 (D. Pa. 1801)
CEO. UD GBA) 2... ccccccccccccccccccccccccceccsccccccess 13
Constitution:
United States Constitution, Art. 1, § 8, cl. 3 ............-- 10
United States Constitution, Art. I, § 8, cl. 18........... 10, 11
United States Constitution, Art. III, § 2, cl. 3............. 11
United States Constitution, Art. VI, § 2........-....0.0e6s 11
Vii
PAGE
Statutes:
Federal Arbitration Act,
EE SEAL ae Ee, ER Se 2
SESE EES eee ane ape 14
TE eR ee ae Reis ae 14
EE A Ae ee ae 11,14
Water Pollution Control Act Amendments of 1972,
BP Wie Oe BORG on ccccccccccccccocccecccecece 2
United States Inland Navigation Rules,
ER, a
Carriage of Goods by Sea Act,
46 U.S.C. §§ 1300-1315 ................0............ 2
Conventions and Treaties:
Assistance and Salvage Convention (1910), 37 Stat. 1658
(1913), reprinted in 6 M. M. COHEN, BENEDICT ON
ADMIRALTY, Doc. No. 4-1 (7th rev'd ed. 1990)
yg EERE SEES Sy Avane RD apo ae ae aaa 3
Civil Liability for Oil Pollution Damages Convention
(1969), U.N.T.S. 1409, reprinted in 6 BENEDICT,
FE RECS re aes De ae a 3
i a 3
Limitation of Liability for Maritime Claims (1976),
reprinted in 6 BENEDICT, Doc. No. 5-4.............. 3
Limitation of Liability of Owners of Sea-Going Ships
(1957), reprinted in 6 BENEDICT, Doc. No. 5-2 ..... 3
Maritime Liens and Mortgages Convention (1967),
reprinted in 6A BENEDICT, Doc. No. 8-3..... ese 3
viii
PAGE
IN THE
1972 Convention for Preventing Collisions at Sea, —
aoa nen ©3408, 0067, ULES. 1004. Ot Supreme Court of the United States
amended, T.I.A.S. 10672, reprinted in 6 BENEDICT, - OCTOBER TERM 1991
Rome Bie, BoB, ...ccccccccccccecccscccccccsccccescescees No. 91-1950
Ocean Bills of Lading Convention (The Hague Rules)
(1924), 120 L.N.T.S. 155, reprinted in 6 BENEDICT, .
Doc. NO. Be)... ccc cece cece e eee e ence ee eee ee eeeenenes 3 AMERICAN DREDGING COMPANY.
Petitioner.
Regulations: —Vv.—
33 C.F.R. ch. 1, subch. D, Special Note (1987) .........-. 3 WILLIAM ROBERT MILLER.
Other: Respondent
Maritime Law Association of the United States (“MLA”) ON PETITION FOR A WRIT OF CERTIORARI To
Articles of ASSOCIALION ... 2... 6. ccc cee eee rere eens 2 THE SUPREME COURT OF LOUISIANA
MLA Resolutions: _
MLA Minutes, MLA Doc. No. 588 (1975) .......-.55+: 4
BRIEF OF THE MARITIME LAW ASSOCIATION OF THE
A Doc. No. 669 (1986) .........-55: 4
MLA Minutes, ML UNITED STATES, AS AMICUS CURIAE, IN SUPPORT
MLA Report, MLA Doc. No. 671 (1987) ........0eeeeeees 4 OF THE PETITION FOR A WRIT OF CERTIORARI
The Maritime Law Association of the United States
(“MLA”) respectfully submits this brief as amicus curiae in
support of the Petition for Certiorari by American Dredging
Company (“Petitioner”). Both Petitioner and Respondent have
consented to the MLA's participation, and copies of the letters
conveying such consent are being filed with the Clerk of the
Court simultaneously with the submission of this brief.
2
INTEREST OF AMICUS CURIAE
MLA has a very strong interest in the disposition of this
case. MLA is a nationwide bar association founded in 1899. It
has a membership of about 3600 attorneys, federal judges, law
professors and others interested in maritime law. It is affiliated
with the American Bar Association and is represented in that
Association's House of Delegates.
MLA’s attorney members, most of whom are specialists in
admiralty law, represent all maritime interests—shipowners,
charterers, cargo owners, shippers, forwarders, port authorities,
seamen, longshoremen, passengers, marine insurance under-
writers and other maritime claimants and defendants.
MLA’s purposes are stated in its Articles of Association:
The objectives of the Association shall be to advance
reforms in the Maritime Law of the United States, to facil-
itate justice in its administration, to promote uniformity in
its enactment and interpretation, to furnish a forum for
the discussion and consideration of problems affecting the
Maritime Law and its administration, to participate as a
constituent member of the Comité Maritime International
and as an affiliated organization of the American Bar
Association, and to act with other associations in efforts
to bring about a greater harmony in the shipping laws,
regulations and practices in different nations.
(Emphasis added.)
In furtherance of these objectives MLA, during the ninety-
three years of its existence, has sponsored a wide range of leg-
islation dealing with maritime matters, including the caemage
of Goods by Sea Act' and the Federal Arbitration Act.’ The
MLA has also cooperated with congressional committees in the
formulation of other maritime legislation.’
| 46 U.S.C. §§ 1300-1315.
2 9 U.S.C. §§ 1-15. 7
3 E.g., 1972 Water Pollution Control Act Amendments, 33 U.S.
§§ 1251-1376; implementation of the 1972 Convention for Preventing
3
MLA is also participating in several projects of a maritime
legal nature undertaken by agencies of the United Nations,
including its Commissions on Trade Law (“UNCITRAL”) and
Trade and Development (“UNCTAD”). It works Closely with
the International Maritime Organization (“IMO”)
MLA has actively participated, as one of some forty-nine
national maritime law associations constituting the Comité
Maritime International,‘ in the movement to achieve maximum
international uniformity in maritime law through the medium
of international conventions.°
MLA believes uniformity in maritime law, both national and
international, is of great importance. This concern has been
repeatedly expressed by our membership and standing com-.
mittees. For example, in 1975 the MLA Standing Committee on
Uniformity of U.S. Maritime Law recommended that Steps be
Collisions at Sea, 28 U.S.T. 3459, T.LA.S. 8587, U.N.T.S. 15824, as
amended, T.1.A.S. 10672, reprinted in 6 M. M. COHEN, BENEDICT ON
ADMIRALTY, Doc. No. 3-4 at 3-35 to 3-78.2 (7th rev'd ed. 1990) (here-
inafter “BENEDICT”), see 33 C.F.R. ch. 1, subch. D, Special Note, at 160
(1987); United States Inland Navigation Rules, 33 U.S.C. §§ 2001-2073.
4 These now include the national associations of Argentina, Australia
and New Zealand, Belgium, Brazil, Bulgaria, Canada, Chile, China,
Colombia, Costa Rica, Czechoslovakia, Denmark, Egypt, Finland,
France, Federal Republic of Germany, German Democratic Republic,
Greece, Hong Kong, Iceland, India, Indonesia, Ireland, Israel, Italy,
Japan, Korea, Mexico, Morocco, The Netherlands, Nigeria, Norway,
Panama, Peru, Philippines, Poland, Portugal, Senegal, Spain, Sri Lanka,
Sweden, Switzerland, Turkey, United Kingdom, United States, Uruguay,
Union of Soviet Socialist Republics, Venezuela and Yugoslavia.
5 E.g., Assistance and Salvage (1910), 37 Stat. 1658 (1913), reprinted
in 6 BENEDICT, Doc. No. 4-1 at 4-2 to 4-10; Ocean Bills of Lading (The
Hague Rules) (1924), 120 L.N.T.S. 155, reprinted in 6 BENEDICT, Doc.
No. 1-1 at 1-2 to 1-19; Collision (1910), reprinted in 6 BENEDICT, Doc.
No. 3-2 at 3-11 to 3-19; Limitation of Liability of Owners of Sea-Going
Ships (1957), reprinted in 6 BENEDICT, Doc. No. 5-2 at 5-11 to 5-28;
Maritime Liens and Mortgages (1967), reprinted in 6A BENEDICT, Doc.
No. 8-3 at 8-25 to 8-32; Civil Liability for Oil Pollution Damages
(1969), U.N.T.S. 1409, reprinted in 6 BENEDICT, Doc. No. 6-3 at 6-
62.133 to 6-76.3; and Limitation of Liability for Maritime Claims
(1976), reprinted in 6 BENEDICT, Doc. No. 5-4 at §-32.2 to 5-44.4.
4
taken to persuade congressional committees “that nationwide
and, in fact, world-wide uniformity in the Maritime Law is
highly desirable, not only from the standpoint of those involved
with maritime commerce but from that of the public as well.”
A resolution to that effect was unanimously adopted at the
MLA Annual Spring Meeting on April 25, 1975.° A substan-
tially identical resolution was adopted by the American Bar
Association in 1976. This policy has been reaffirmed by the
MLA on several occasions, most recently in a 1986 resolution.’
MLA has, in furtherance of the uniformity policy and reso-
lutions, filed amicus briefs in a number of cases, including a
number of briefs accepted by this Court.*
It is also the policy of MLA to file briefs as amicus curiae
only when important issues of maritime law are involved and
the Court's decision may substantially affect the uniformity of
maritime law.
Such a situation exists in this case. Application of state
open-forum statutes to maritime cases not only destroys uni-
formity of U.S. maritime law but also invites and endorses
forum shopping and unpredictability in an area in which con-
sistency is essential. The Louisiana court’s holding also per-
petuates the now chronic conflict between Louisiana and Texas
State Courts and the United States Court of Appeals for the
Fifth Circuit.
Apart from the inherent problems arising from uncertainty in
the application of a federal door-closing measure, there is the
risk that state courts will neglect other elements of admiralty
law. See, e.g., Green v. Industrial Helicopters, Inc., 593 So.2d
634 (La. 1992) (applying state strict liability statute to mar-
6 MLA Minutes, MLA Doc. No. 588 at 6397-98 (1975).
7 MLA Minutes, MLA Doc. No. 669 at 8769 (1986).
8 E.g., Chick Kam Choo v. Exxon Corp., 486 U.S. 140 (1988); Offshore
> Logistics, Inc. v. Tallentire, 477 U.S. 207 (1986); Ray v. Atlantic
Richfield Co., 435 U.S. 151 (1978); Askew v. American Waterways
Operators, Inc., 411 U.S. 325 (1973). For a more comprehensive listing,
see MLA Report, MLA Doc. No. 671 at 8862-63 (1987).
5
itime tort). Allowing a proliferation of chaotically different
results in the same factual settings adversely affects the general
viability of the doctrine of uniformity and thus the practices of
MLA’s membership and the wide variety of interests repre-
sented.
SUMMARY OF REASONS FOR GRANTING THE WRIT
The problem of disparate treatment of forum non conveniens
motions by state and federal courts is chronic and vexing.
Forum shopping is encouraged by the difference between the
law applied by federal and state courts, and produces a burden
on the federal courts because remand to the state courts may
sometimes, in the federal court’s view, result in injustice. Lack
of uniform treatment of this issue is an impediment to interstate
and international commerce.
Congress has granted state courts only limited jurisdiction to
hear maritime Cases. Maritime cases are governed by federal
law which applies uniformly, as a constitutional requirement
in federal and state courts alike. Characterization of a maritime
law doctrine as “procedural” cannot avert its application, espe-
cially when a characteristic maritime doctrine is at issue.
The federal doctrine of forum non conveniens is a door-clos-
ing measure which must be enforced by state courts in mar-
itime cases regardless whether an analogous measure exists
under state law.
6
REASONS FOR GRANTING THE WRIT
I
THE CONFLICT BETWEEN THE FEDERAL AND
STATE COURTS IS PERSISTENT AND VEXING.
The Fifth Circuit and Texas and Louisiana State Courts have
been in conflict for years on precisely this issue.’ See, e.g.,
Exxon Corp. v. Chick Kam Choo, 817 F.2d 307 (Sth Cir. 1987),
rev'd on other grounds, 486 U.S. 140 (1988), appeal after
remand, 821 S.W.2d 190 (Tex. App. 14th Dist. 1991), writ
granted, 35 Tex. Sup. Ct. J. 684 (1992). Compare, e.g.,
Markzannes v. Bermuda Star Line, Inc., 545 So.2d 537 (La.
1989), cert. denied sub nom. Bermuda Star Line, Inc. v.
Markozannes, 493 U.S. 1043 (1990), and Kassapas v. Arkon
Shipping Agency, 485 So.2d 565 (La. Ct. App. 5th Cir.), writ
denied, 488 So.2d 203 (La.), cert. denied, 479 U.S. 940 (1986),
with Ikospentakis v. Thelassic Steamship Agency, 915 F.2d 176
(Sth Cir. 1990), and Camejo v. Ocean Drilling & Exploration,
838 F.2d 1374, 1382 (Sth Cir. 1988). See also Petition n.4, at
11-12 (tracing history of Chick Kam Choo v. Exxon Corp.).
This distressing disharmony has already led to a burden on
the federal courts in at least one case in which the Fifth Circuit
felt compelled to refuse to allow a voluntary dismissal of a fed-
eral action because the plaintiff would have then proceeded in
9 For example, in /kospentakis, the Fifth Circuit observed:
That the [forum non conveniens| defense is available to [defendants]
and that it would be “stripped” from them in Louisiana state court,
albeit in violation of the constitution’s supremacy clause, are equally
certain propositions. . . .
. . . At some point, Louisiana must bend to the federal courts’ con-
struction of federal law. However, to insist that these foreign appel-
lants become guinea pigs in an effort to overturn Louisiana's
erroneous rule would blink at reality and would needlessly subject
them to considerable expense as well as legal prejudice for the sake
of vindicating principle. We need not reach such an unjust result.
915 F.2d at 178, 180.
7
a State court in which, as a practical matter, the doctrine of
forum non conveniens would not be applied, thus prejudicing
the foreign defendants. /kospentakis, 915 F.2d at 180.
Particularly in view of the burdens now placed on the federal
courts, their dockets should not be further clogged by cases
which could be entrusted to the state courts if those courts
would apply governing federal doctrines.
Conflict on the applicability of forum non conveniens will
continue to be a significant burden on the federal courts
because of the variety of contexts in which the doctrine is
raised. See, e.g., Black Diamond Steamship Corp. v. Robert
Stewart & Sons, Ltd., 336 U.S. 386 (1949) (salvage); Tramp
Oil v. MERMAID I, 743 F.2d 48, 1985 AMC 459 (1st Cir. 1984)
(maritime lien); Calavo Growers of California v. Generali
Belgium, 632 F.2d 963, 1980 AMC 1993 (2d Cir. 1980), cert.
denied, 449 U.S. 1084 (1981) (breach of marine insurance con-
tract); The WILJA, 113 F.2d 646 (2d. Cir.), cert. denied sub
nom. O/Y Wipu v. Dreyfus, 311 U.S. 687 (1940) (breach of
charter party); Ocean Shelf Trading v. Flota Mercante
Grancolumbiana, 638 F. Supp. 249, 1986 AMC 2482 (S.D.N.Y.
1986) (collision); Matson Navigation Co. v. Stal-Laval Turbin
AB, 609 F. Supp. 579, 1985 AMC 2381 (N.D. Cal. 1985) (prod-
ucts liability for negligent design of ship's engine); Red Sea
Insurance v. S.S. LUCIA DEL MAR, 1983 AMC 1630 (S.D.N_Y.
1982), aff'd, 1983 AMC 1631 (2d Cir. 1983) (cargo loss);
Argyll Shipping Co. v. Hanover Insurance Co., 297 F. Supp.
125 (S.D.N.Y. 1968) (general average); Wall Street Traders Inc.
v. Sociedad Espanola de Construccion Naval, 245 F. Supp. 344
(S.D.N.Y. 1964) (breach of ship conversion contract); Galban
Lobo Trading Co. v. Canadian Leader Ltd., 1963 AMC 988
(S.D.N.Y. 1958) (breach of contract of carriage). While the
courts in some of these cases decided to retain jurisdiction,
each applied the doctrine of forum non conveniens to the mar-
itime Causes of action before it, thus illustrating the breadth of
the range of commercial interests affected by the doctrine and
the frequency with which it arises.
8
THE CONFLICT IS AN IMPEDIMENT TO
INTERSTATE AND INTERNATIONAL COMMERCE,
The principle mandating uniform treatment of maritime cases
is not a vacant theoretical requirement, but rather was designed
to afford fairness to all maritime litigants by having their con-
duct and rights governed by the same rules, regardless of where
their cases were tried. In 1874, the Supreme Court stated in The
LOTTAWANNA:
[T]he convenience of the commercial world, bound
together, as it is, by mutual relations of trade and inter-
course, demands that, in all essential things wherein those
relations bring them in contact, there should be a uniform
law founded on natural reason and justice. . . .
One thing, however is unquestionable: The Constitution
must have referred to a system of law co-extensive with,
and operating uniformly in, the whole country. It certainly
could not have been the intent to place the rules and lim-
its of maritime law under the disposal and regulation of
the several States, as that would have defeated the uni-
formity and consistency at which the Constitution aimed
on all subjects of a commercial character affecting the
intercourse of the States with each other or with foreign
States.
88 U.S. (21 Wall.) 558, 575 (1875)."°
In 1920, the Court in Knickerbocker Ice Co. v. Stewart, refer-
ring to the approval and adoption of the general maritime law
as part of the laws of the United States, held:
10 The Court of Appeals for the Second Circuit observed, there is
“another policy reason for adhering to a uniform standard [of forum non
conveniens}, namely, not to run afoul of the weaty obligations of the
United States.” Alcoa Steamship Co. v. M/V NorDIC REGENT, 654 F.2d
147, 152 (2d Cir.), cert. denied, 449 U.S. 890 (1980).
9
The Constitution itself adopted and established as part of
the laws of the United States, approved rules of the gen-
eral maritime law. . . . Moreover, it took from the States
all power, by legislation or judicial decision, to contra-
vene the essential purposes of, or to work material injury
to, characteristic features of such law or to interfere with
its proper harmony and uniformity in its international and
interstate relations. To preserve adequate harmony and
appropriate uniform rules relating to maritime matters and
bring them within control of the Federal Government was
the fundamental purpose. . . .
253 U.S. 149, 160 (1920).
Because maritime commerce almost always involves inter-
national or interstate activities or at least sufficient contact with
any number of fora to satisfy minimum due process require-
ments, Operators and other defendants can be drawn into court
almost anywhere, and since removal is not available simply
because the claim is maritime, without application of the doc-
trine of forum non conveniens, defendants can be forced to test
their rights and liabilities in an oppressive and vexatious loca-
tion, even if neither the events nor the plaintiff has any mean-
ingful contact whatsoever with the jurisdiction, as is the
Situation here. Thus, without uniformity, a litigant’s rights
would be subject to the vagaries of plaintiff's choice of forum,
and commerce would suffer. See Exxon, 817 F.2d at 318
(“Applying state law inconsistent with ‘characteristic features’
would a. the reasonably settled expectations of maritime
actors.”).
Uniformity is essential for predictability, and both tort and
contract litigants are entitled to predictability in their legal
relations. While the value of predictability is more often con-
sidered in connection with contracting parties who take account
of the potential application of certain bodies of law in formu-
lating their agreements, predictability is also of consequence in
tort, where the parties are guided by their attorneys’ percep-
tions of the law most likely to be applied and the rights and lia-
bilities arising from those bodies of law. If attorneys cannot
10
make educated guesses about where an action will be tried and
what rules will be applied, their ability to counsel their clients
as to outcome, settlement value and every other aspect of the
legal process will be greatly impaired. Litigation will be pro-
longed, as has happened here, as the series of appeals and
reconsiderations multiply."
If state courts are free to reject the doctrine of forum non
conveniens, the uncertainties of litigation are vastly increased.
Moreover, a state court which feels free to avoid application of
one general maritime rule will be encouraged to overlook other
admiralty principles. See, e.g., Green v. Industrial Helicopters,
Inc., 593 So.2d 634 (La. 1992) (applying state strict liability
Statute to maritime tort).
THIS COURT SHOULD UPHOLD THE PRINCIPLE
OF UNIFORMITY OF MARITIME LAW.
A. The Intent to Maintain National Uniformity Was
Confirmed in the Constitution.
Article I, Section 8, Clause 3 (the Commerce Clause) states:
The Congress shall have power. . . To regulate com-
merce with foreign Nations, and among the several States
Article I, Section 8, Clause 18 (the Necessary and Proper
Clause) states:
The Congress shall have power. . . To make all Laws
which shall be necessary and proper for carrying into
Execution the foregoing Powers. . . .
ll See Appendices A, B and C of Petitioner's Petition (showing the
progress of this case through successive appeals and reversal in the state
court); Petition at 5-7. The history of Exxon v. Chick Kam Choo also
illustrates this tortuous pattern. See Petition n.4, at 11-12.
Article III, Section 2, Clause 3 (the Admiralty Clause) states:
The judicial power shall extend. . . to all Cases of admi-
ralty and maritime Jurisdiction. . . .
Article VI, Section 2 (the Supremacy Clause) states:
This Constitution, and the Laws of the Uni
which shall be made in Pursuance thereof “ene pha
the Supreme Law of the Land: and the Judges in every
State Shall be bound thereby, any Thing in the
Constitution or Laws of any State to the Contrary notwith-
Standing.
. The Admiralty, and Necessary and Proper Clauses, and deci-
sions interpreting them, confirm that, except in areas of purely
local concem, the general maritime law is to apply in all admi-
ralty and maritime Cases in the United States. The Supremacy
Clause requires state courts to follow established maritime law.
B. Although Congress Has Dele
gated a Portion of
Admiralty Law Jurisdiction to the State Courts, They
Are Required to Apply Federal Admiralty Law.
Congress, in implementing constitutional provisi
statute, recognized from the first that it might “a olla
mient to bring every maritime case to one of the few federal
courts. It therefore delegated to the state courts an alternative
limited jurisdiction to hear Ordinary in personam maritime
Causes of action not involving the special procedures and reme-
dies of admiralty, such as arrests, perfection of liens, etc. This
was done by the “saving to suitors” clause in the Judiciary Act
of 1789, now reworded in section 1333 of Title 28 of the U.S.
Code. This purpose, however, cannot be served if, because of
on na = State court's application of maritime law, the
prec come chary of permitting cases to proceed in
12
C. Application of the Forum Non Conveniens Doctrine
Cannot Be Avoided by Characterizing It as
“Procedural.”
To say that the principle of uniformity ought to be limited to
“substance” and denied to “procedure” does not resolve the
question here.
In Panama Railroad Co. v. Johnson, the Court pointed out in
discussing “admiralty and maritime jurisdiction”:
The framers of the Constitution were familiar with that
[admiralty] system and proceeded with it in mind. Their
purpose was not to strike down or abrogate the system,
but to place the entire subject—its substantive as well as
its procedural features—under national control. . . .
264 U.S. 375, 386 (1924) (emphasis added). In many maritime
cases, procedure is as important as substantive law.
The United States Supreme Court has rejected the use of the
epithet “procedural” as a means of deciding cases. In Guaranty
Trust Co. v. York, 326 U.S. 99, 108 (1945), the Court clearly
recognized the infirmity of such analysis:
Matters of “substance” and matters of “procedure” are
much talked about in the books as though they defined a
great divide cutting across the whole domain of law. But,
of course, “substance” and “procedure” are the same key
words to very different problems. Neither “substance” nor
“procedure” represents the same invariants. Each implies
different variables depending upon the particular problem
for which is used.
One of the cases with which the Court illustrated the point
was Garrett v. Moore-McCormack Co., 317 U.S. 239, 248-49
(1942), a maritime case which had come up through the state
courts. The Court held that a burden of proof, however it might
be thought to be procedural, had such consequences that the
federal rule must be used by the state court.
13
, In Hanna v. Plumer, 380 U.S. 460 (1965), the Court reaf-
firmed its view that the dichotomy between “substance” and
“procedure” was not adequate for deciding cases, while mak-
ing clear that the criterion of “outcome-determination” is also
not a universal rule. In both Guaranty Trust and Hanna, the
Court stressed the discouragement of forum-shopping as a
ground for looking beyond the common epithets in deciding
whether federal or state standards should be applied.
The Guaranty Trust and Hanna cases indicate that the dis-
paraging adjective “procedural” should not be used to reject a
doctrine that is characteristic of the maritime law which gov-
ers this case.
D. The Doctrine of Forum Non Conveniens Is a
“Characteristic Feature” of the Maritime Law which
Must Be Applied in Maritime Cases Such as the One
Before this Court.
As stated in Exxon:
Applying state law inconsistent with “characteristic fea-
tures” would defeat the reasonably settled expectations of
maritime actors. .. .
. . . The doctrine of forum non conveniens is the heart
and soul of the federal policy of judicial self-restraint in
the day-to-day workings of the maritime law. Texas can-
not be allowed to thwart that policy in a maritime case
brought to its courts... .
. . . State law inconsistent with that doctrine [of forum
non conveniens| cannot be applied in a maritime case.
817 F.2d at 318, 323-24 (footnote omitted). Accord,
/kospentakis, 915 F.2d at 178 (“This court has recognized that
forum non conveniens is a “characteristic feature” of maritime
law, tracing its history back to the earliest decisions of the fed-
eral courts.”). The general maritime law has embraced the doc-
trine for over 190 years, see Willendson v. Forsoket, 29 F. Cas.
1283 (D. Pa. 1801) (No. 17,682), and actually is its source.
4
Alcoa Steamship, 654 F.2d at 154 (reviewing cases). See cases
cited supra, at 7, for examples of the maritime contexts In
which forum non conveniens has been applied.
IV
UNIFORMITY REQUIRES THAT IN MARITIME
CASES, FEDERAL DOOR-CLOSING MEASURES,
SUCH AS FORUM NON CONVENIENS, ARE
BINDING ON THE STATE COURTS.
Although the federal government has limited powers, when
it exercises those powers, under the Supremacy Clause the
states are bound thereby, even to the extent of giving exclusive
jurisdiction to federal courts in such matters. See, €.2., 15
U.S.C. § 1346(b) (tort claims against the United States). This
constitutional principle has been applied on many occasions in
the form of federal door-closing measures which bind state
courts. This is especially true in admiralty cases where
Congress has consistently pursued uniformity and given federal
courts “exclusive” jurisdiction, except for delegating a limited
jurisdiction to state courts by “saving to suitors in all cases all
other remedies to which they are otherwise entitled.” 28 U.S.C.
§ 1333(1).
For example, in an admiralty case, the United States
Supreme Court described the criteria for enforcing a foreign
forum clause, thereby closing all courts here to certain disputes
arising under international maritime contracts. The BREMEN v.
Zapata Off-Shore Co., 407 U.S. 1 (1972). Congress has man-
dated that all American courts must stay their proceedings
whenever a party invokes a valid arbitration Clause in a suit
involving maritime, international or interstate commerce,
regardless whether the underlying claims arise under federal or
state law. 9 U.S.C. § 3. See Southland v. Keating, 465 U.S. |
(1984); Mitsubishi Motors Corp. v. Soler Chrysler Plymouth,
Inc., 473 U.S. 614 (1985).
15
The doctrine of forum non conveniens is another type of
door-closing measure first enunciated by this Court in an admi-
ralty suit. Canada Malting Co. v. Paterson Co., 285 U.S. 413
(1932). The question here is not when state courts may close
their own doors to federal claims, Missouri v. Mayfield, 340
U.S. 1 (1950), but rather when state courts must apply a doc-
trine characteristic of the general maritime law, even when
application of the doctrine may result in the state court closing
its doors to a maritime suit.
It would be an abuse of discretion for any district court to
decline to enforce the doctrine of Gulf Oil Corp. v. Gilbert, 330
U.S. 501 (1947), and Piper v. Reyno, 454 U.S. 235 (1981),
when applicable. These cases mandate that some cases simply
not be tried in the forum selected by plaintiff if the stated fac-
tors require adjudication elsewhere.
In Testa v. Katt, 330 U.S. 386 (1947), the United States
Supreme Court held that state courts which lacked jurisdiction
under state law to hear federal claims could be required by fed-
eral law to hear them nonetheless. The converse is equally true.
In a maritime case where under Gulf Oil and Piper a federal
court sitting in a given district could not hear the case, a state
court likewise should be required to apply the doctrine and dis-
miss.
The existence of a state open-forum statute does not alter the
result. A state legislature lacks power to keep state courts open
to hear claims or which they have been deprived of jurisdic-
tion by federal law. See The Moses TAYLOR, 71 U.S. (4 Wall.)
411 (1867); The HINE v. Trevor, 71 U.S. (4 Wall.) 555 (1867);
Lindgren v. United States, 281 U.S. 38, 47 (1930); Southland,
465 U.S. at 15-16. In enacting the “saving to suitors” clause,
Congress granted state courts “partially concurrent” jurisdic-
tion to hear some admiralty suits. Knickerbocker Ice, 253 U.S.
at 161. But, Congress quite clearly never intended that state
courts should exercise greater jurisdiction in maritime cases
than the federal courts sitting in the state.
16
CONCLUSION
We most respectfully urge this Honorable Court to grant the
Petition for Certiorari.
Dated: June 29, 1992
Respectfully submitted,
/s/ LIZABETH L, BURRELL
LIZABETH L. BURRELL
Counsel of Record
GEORGE W. HEALY, Ill
One Battery Park Plaza
New York, New York 10004
(212) 422-7585
Attorneys for the Maritime Law
Association of the United States,
Applicant for Leave to File Brief
as Amicus Curiae
PROOF OF SERVICE BY MAIL
1 am a citizen of the United States and a resident of the City
of Brooklyn and the County of Kings; I am over the age of
eighteen years and not a party to the within action; my business
address is: One Battery Park Plaza, New York, New York
10004.
On June 29, 1992, I served the within Amicus Curiae Brief
in Support of the Petition for a Writ of Certiorari in re:
“American Dredging Company v. William Robert Miller” in the
United States Supreme Court, October Term 1991, No. 91-
1950, on the Parties in said action by placing three copies
thereof enclosed in a sealed envelope with postage fully pre-
paid, in a United States post office mail box at New York, New
York, addressed as follows:
Timothy J. Falcon, Esq.,
Attorney at Law
500 Verret Street
New Orleans, Louisiana 70114-1055
Counsel of Record for Respondent
Thomas J. Wagner, Esq.
Wagner & Bagot
336 Camp Street
C & R Building, Suite 250
New Orleans, Louisiana 70130-2804
Counsel of Record for Petitioner
All Parties required to be served have been served.
I declare, under penalty of perjury, that the foregoing is true
and correct.
Executed on June 29, 1992 at New York, New York.
LIZABETH L. BURRELL
Lizabeth L. Burrell
TABLE OF AUTHORITIES (continued)
Decisions
PAGE
Quintero v. Klaveness Ship Lines,
914 F.2d 717 (Sth Cir. 1990),
reh'g denied, en banc, 920 F.2d 931 (Sth Cir. 1990),
cert. denied, 111 S. Ct. 1322 (U.S. 1991) ooo. 20
Romero v. International Terminal Operating Co.
358 U.S. 354, 79 S. Ct. 468, (1959),
reh'g denied, 359 U.S. 962, 79 S. Ct. 795 (1959) ooo... 12
Sherrill v. Brinkerhoff Maritime Drilling,
615 F. Supp. 1021 (N.D. Cal. 1985) 0.0.0... eee 17, 29
Sibaja v. Dow Chemical Co.,
757 F.2d 1215 (11th Cir. 1985),
reh'g denied, en banc, 765 F.2d 154 (11th Cir. 1985),
cert. denied, 474 U.S. 948, 106 S. Ct. 347 (1985) .0...0...... 21
The Steamer St. Lawrence,
I ns 10
Symeonides v. Cosmar Compania Naviera, S.A..,
433 So. 2d 281 (La. App. Ist Cir. 1983),
cert. denied, 440 So. 2d 731 (La. 1983),
cert. denied, 465 U.S. 1079, 104 S. Ct. 1442 (1984) ........ 21
Szumlicz v. Norwegian American Line, Inc.,
Fe ee BREE CO is HD citcscsricsnscssnctesnennctnsensinsoieass 17
Vargas v. M/V MINI LAMA,
709 F. Supp. 117 (E.D. La. 1969) .......cccccccccssssccccssseess 17, 29
x
TABLE OF AUTHORITIES (continued)
Decisions
PAGE
Villar v. Crowley Maritime Corporation,
780 F.Supp. 1467 (S. D. Tex. 1992)..........ccccceceeeseeeeeeeees 20
Washington v. W. C. Dawson & Co.,
264 U.S. 219, 44S. Ct. 302 (1924) ooo. 8, 12,13
Willendson v. Forsoket,
In 14
Zipfel v. Halliburton Co.,
832 F.2d 1477 (9th Cir. 1987),
cert. denied, 486 U.S. 1054, 108 S. “t. 2819 (1988),
reh’g denied, 487 U.S. 1245,
Pe ails SP IE sacstaticdevabcciciidusncsecsesonnqsisenicsiess 17,20,30
Statutes
PAGE
28 U.S.C.A. § 1257 (West Supp. 1992) 0.0... eeceeeceeseeeeeees I
ais Oe PI I iaciasinctisisisadiihiisiiteniiciiicasciiciiiibeaoci ye
Anti-Injunction Act, 28 U.S.C. § 2283 .0.......ccccccceceeeeeeees 18
Death on the High Seas Act
RAS TEP IIIS SEIT sc scsiislnscsiicaicnssadibnladiincstebbenuiiacssonneneiniaeds 11
Fed.Rules Civ.Proc.Rules
EERSTE AREE Ee ONO NER = IIT OT ON PIT Ee 25
xi
TABLE OF AUTHORITIES (continued)
Statutes
PAGE
Federal Employer's Liability Act,
eR ERIE SE ORR ORT SS TEE 24
Jones Act 46 U.S.C.A. § 688
SE I csc ciaaccinacipenienaincnsileail 4,24
Judiciary Act of 1789, Ch. 20
| Stat. 73, 76, 77, Comp. Stat.
$§ 530, 991: Sec. 9 (Sept. 24, 1789) ..........ccccccsescosesees 12, 23
La Code Civ. Proc. Art. 123 (West Supp. 1992)..........3,22,23
I es ic a 2,9
Treatises and Other Authorities
PAGE
A. Bickel, “Forum Non Conveniens on Admiralty,”
35 Cornell L. Quarterly 12, 17 (1949) ooo... 24
Alexander Hamilton, The Federalist
NET OUITET cienidasinibncardtiniaiisdintainididndntdneuetiinietincndinienibiicdetenditiads 9
Baer, Admiralty Law of the Supreme Court,
Sy Ps SII: CIEE cancicccncenssnerncinncsncnenccsemsesonsonesineets 17
Friedell, Benedict on Admiralty,
1 §§ 105, 121, 122, 129
Se Se URI HOPI ctstasccniecionisiiniddansnnaenaneneniiniaians 17
xii
TABLE OF AUTHORITIES (continued)
Gilmore & Black, The Law of Admiralty
Dp et CIN I ccc ccciccisnetsncsvareosncanasisatittecas, 17
Healy & Sharp, Admiralty Cases & Materials
Ch. 2, Section F, pp. 157-162 (2d ed. 1986) ..........00-ccccccce. 17
Joseph Story, Commentaries on the Constitution
of the United States (Book II), 529, 530
Ia 7)
James Madison
“Vices of the Political System
of the United States,”
The Writings of James Madison (Vol. 2)
(G. Hunt ed. 1901) pp. 361-369, at 362 oo... cee. )
James Madison, Letters to Edmund Randolph
and George Washington, dated April 8 and 16, 1987,
respectively,
The Writings of James Madison (Vol. 2)
SP Aa ts )
Schoenbaum, Admiralty and Maritime Law,
§§ 5-8, 8-8, 13-9, 20-6, 11,
pp. 189, 270, 477, 478, 639, 651-653 (1987). ooo. 17
xin
OPINIONS BELOW
All opinions below are contained in the Joint Appendix.
The opinion of the trial court, the Civil District Court for Orleans
Parish in Louisiana, is reproduced in the Joint Appendix, pp. 51,
52. Its judgment, dismissing the suit on the basis of petitioner's
exception and maritime defense of forum non conveniens, ap-
pears in the Joint Appendix, pp. 49, 50. The opinion of the
Louisiana Fourth Circuit Court of Appeal, affirming the trial
court judgment, is reported at Miller v. American Dredging Co.,
580 So. 2d 1091 (La. App. 4th Cir. 1991) and is reproduced in the
Joint Appendix, pp. 53-57. The Louisiana Supreme Court's
opinion, reversing the appellate court and the trial court judg-
ments, is reported at Miller v. American Dredging Co., 595 So.
2d 615 (La. 1992). Itis reproduced in the Joint Appendix, pp. 58-
67.
JURISDICTIONAL STATEMENT
The judgment of the Louisiana Supreme Court was
entered on March 2, 1992. The petition for certiorari was filed
on May 29, 1992 and this Court granted certiorari on April 19,
1993. The jurisdiction of this Court is invoked under 28
U.S.C.A. § 1257 (West Supp. 1992).
CONSTITUTIONS, STATUTES AND
REGULATIONS INVOLVED IN THE CASE
Article III, Section 2, Clause | of the United States
Constitution provides:
The judicial Power shall extend to all Cases, in
Law and Equity, arising under this Constitution,
the Laws of the United States, and Treaties made,
or which shal! be made, under their Authority; - to
all Cases affecting Ambassadors, other public
Ministers and Consuls; - to all Cases of admiralty
and maritime Jurisdiction; - to Controversies to
which the United States shall be a Party; -to
Controversies between two or more States; - be-
tween a state and Citizens of another state; be-
tween Citizens of different States; - between Citi-
zens of the same State claiming Lands under
Grants of different States, and between a State or
the Citizens thereof, and foreign States, Citizens
or Subjects.
28 U.S.C.A. § 1333 (1949), commonly known as the
“saving to suitors” clause, provides as follows:
The district courts shall have original ju-
risdiction, exclusive of the courts of the States of:
(1) Any civil case of admiralty or maritime juris-
diction, saving to suitors in all cases all other
remedies to which they are otherwise entitled.
(2) Any prize brought into the United States and
all proceedings for the condemnation of property
taken as prize.
Louisiana Code of Civil Procedure Article 123 provides interest of justice, and before the rendition of the
as follows: judgment of dismissal, the court shall require the
A.For the convenience of the parties and wit-
nesses, in the interest of justice, a district court
upon contradictory motion, or upon the court's
own motion after contradictory hearing, may trans-
fer a civil case to another district court where it
might have been brought; however, no suit brought
in the parish in which the plaintiff is domiciled,
and in a court which is otherwise a court of
competent jurisdiction and proper venue, shall be
transferred to any other court pursuant to this
Article.
B.Except as provided in Paragraph C, upon the
contradictory motion of any defendant in a civil
case filed in a district court of this state in which a
claim or cause of action is predicated solely upon
a federal statute and is based upon acts or omis-
sions Originating outside of this state, when it is
shown that there exists a more appropriate forum
outside of this state, taking into account the loca-
tion where the acts giving rise to the action oc-
curred, the convenience of the parties and wit-
nesses, and the interest of justice, the court may
dismiss the suit without prejudice; however, no
suit in which the plaintiff is domiciled in this state,
and which is brought in a court which is otherwise
a court of competent jurisdiction and proper venue,
shall be dismissed pursuant to this Article. In the
defendant or defendants to file with the court a
waiver of any defense based upon prescription,
provided that a suit on the same cause of action is
commenced in a court of competent jurisdiction
within sixty days from the rendition of the judg-
ment of dismissal.
C.The provisions of Paragraph B shall not apply to
claims brought pursuant to 46 U.S.C.A. § 688
(1920 and West Supp. 1992) or federal maritime
law.
STATEMENT OF CASE
William Robert Miller, Sr., petitioner, is a resident of
Mississippi. In August of 1987, he moved to Pennsylvania where
he joined the Union of Operating Engineers, Local 25 in Phila-
delphia, Pennsylvania. Through the union, he was hired by
American Dredging Company (“American Dredging”) to work
aboard the Tug JOHN R in the Delaware River. American
Dredging is a Pennsylvania corporation with its principal place
of business in Camden, New Jersey, which is located just across
the Delaware River from Philadelphia. (J.A. 8, 13, 32, 53, 58).
This action arises out of an accident allegedly sustained
by Mr. Miller aboard the Tug JOHN R amid operations in the
Delaware River off Marcus Hook, Pennsylvania, on December
12, 1987. (J.A. 8, 12, 53, 58). The Tug JOHN R does not now
nor has it ever navigated in Louisiana waters. The situs of the
vessel's operations is the Delaware River near Camden, New
Jersey, where the vessel can be available for inspection during
discovery, if necessary. (J.A. 13, 53, 54).
4
Mr. Miller was initially treated at Sacred Heart Medical
Center in Chester, Pennsylvania. Subsequently, he was treated
at the Hospital for Joint Diseases Orthopedic Institute located in
New York City. In February of 1988, Mr. Miller returned to
Mississippi where he has been treated by other physicians. (J.A.
32, 53, 58).
On December |, 1989, Mr. Miller filed this suit against
American Dredging in Louisiana state court, the Civil District
Court for the Parish of Orleans. (J.A. 1, 7-9). American
Dredging filed exceptions, challenging personal jurisdiction and
requesting a dismissal pursuant to the doctrine of forum non
conveniens. (J.A. 1, 10, 11). On September 21, 1990, the
exceptions were heard. On September 25, 1990, District Judge
Fedoroff entered his reasons for judgment and expressly con-
cluded as follows:
It is patent that the Civil District Court is not a
convenient forum. Selection of this Court, having
absolutely no connection with the case, is forum
shopping of the worse [sic] sort.
(J.A. 52)
Following federal maritime authority, the trial court dismissed
the action subject to the right of the claimant to proceed in
Pennsylvania.! (J.A. 49, 50).
On October 26, 1990, plaintiff filed a motion for suspen-
sive appeal. On November 8, 1990, the appeal order was signed
! The defendant has waived any claim that the suit is time-barred
should the plaintiff bring the action in a Pennsylvania court of compe-
tent jurisdiction.
by Judge Fedoroff. On May 6, 1991, the Louisiana Fourth
Circuit Court of Appeals heard argument. (J.A. 2, 3). In its
decision of May 30, 1991, the Fourth Circuit affirmed the
decision of the lower court, holding that the dismissal was proper
under the admiralty doctrine of forum non conveniens. Miller v.
American Dredging Co., 580 So. 2d 1091 (La. App. 4th Cir.
1991). (J.A. 53-57). The appellate court specifically held as
follows:
In the face of clear pronouncements by the Federal
judiciary that maritime cases filed in state court
must be governed by the federal doctrine of forum
non conveniens, we are compelled to apply that
defense in the instant case. We agree with the trial
court's factual conclusion that Louisiana has ab-
solutely no connection with this case. Neither
party is a Louisiana resident; the accident occurred
on the Delaware river; plaintiff was treated in
Pennsylvania, New York and Mississippi; the
vessel on which he was injured has never navi-
gated Louisiana’s waters. The only semblance of
connexity with Louisiana is the fact that ADC has
a registered agent here. That alone is not enough.
Miller, 580 So. 2d at 1093; (J.A. 56, 57).
On June 28, 1991, Mr. Miller petitioned the Louisiana
Supreme Court to review the decision of the Fourth Circuit Court
of Appeals. By order dated October 18, 1991, the Louisiana
Supreme Court granted the writ to review the decision of the
Fourth Circuit. (J.A. 4, 5). On March 2, 1992, the Louisiana
Supreme Court reversed the decision of the trial and appellate
courts, declining to apply the doctrine of forum non conveniens
to the state court action. Miller v. American Dredging Co., 595
So. 2d 615 (La. 1992). (A. 6, 58-67). Relying upon federal
diversity cases, the Court concluded that it could apply Louisiana
procedural law, which only recognizes forwm non conveniens
dismissals in non-maritime cases.
American Dredging filed its petition for certiorari on
May 29, 1992. and the Supreme Court granted the petition on
April 19, 1993.
SUMMARY OF THE ARGUMENT
The question presented herein is whether the admiralty
doctrine of forum non conveniens is applicable to maritime
actions filed in state courts pursuant to the “savings to suitors”
clause. 28 USCA. § 1333 (1949). Petitioner, American
Dredging Company (“American Dredging’), respectfully urges
that the trial court and Louisiana Fourth Circuit Court of Appeals
correctly applied this admiralty doctrine, rather than state proce-
dural law, to these maritime claims. William Robert Miller was
not a resident or a citizen of Louisiana. His injury occurred on
the tug on the Delaware River while he was a Pennsylvania
resident, a member of a Pennsylvania union and employed by a
Pennsylvania corporation. The doctrine was correctly applied by
the trial court. Piper Aircraft Co. v. Reyno, 454 U.S. 235, 102 S.
Ct. 252 (1981).
Petitioner respectfully submits that the doctrine of forum
non conveniens is acharacteristic feature of admiralty which has
modulated this discretionary exercise of admiralty jurisdiction in
a fashion commensurate with the Constitutional protection of
maritime commerce. Mason v. Ship Blaireau, 6 U.S. (2 Cranch)
240 (1804); The Belgenland, 114 U.S. 355, 5S. Ct. 860 (1885);
Canada Malting Co. v. Paterson S.S. Lid.,285 U.S.413,52S.Ct.
413 (1932).
The discretionary nature of the doctrine complements the
Constitutional goal of admiralty to protect and promote maritime
commerce. Piper, supra, The Lottawanna, 88 U.S. (21 Wall)
558, 574 (1875); Washington v. W. C. Dawson & Co., 264 US.
219,448. Ct. 302 (1924). It accords appropriate deference to the
plaintiffs choice of forum while mandating consideration of an
alternate suitable forum and balancing private and public factors,
all of which bear upon the determination of the proper forum for
a fair and convenient resolution of the dispute. Piper, supra; Gulf
Oil Corp. v. Gilbert, 330 U.S. 501, 67S. Ct. 839 (1947): Koster
v. (American) Lumbermen's Mut. Casualty Co., 330 U.S. 518,67
S. Ct. 828 (1947). As a doctrine which protects the rights of all
litigants to an adjudication of their dispute in a forum convenient
to the dispute at hand, the parties, the witnesses and the other
source of proof, the application of forum non conveniens in
admiralty cannot be evaded by reference to state procedural rules
under the guise of the “reverse-Erie” concept. Compare Kossick
v. United Fruit Co., 365 U.S. 731, 81S. Ct. 886 (1961): Garrett
v. Moore-McCormack Co., 317 U.S. 239, 63 S.Ct. 246 (1942).
Forum non conveniens is a fundamental part of the
admiralty which provides protection of maritime commerce
against vexatious or harassing litigation in inconvenient fora
detrimental to the goals of uniformity of maritime law. In the
instant matter, the Civil District Court for Orleans Parish, State
of Louisiana correctly applied this admiralty doctrine, dismiss-
ing these maritime claims subject to their adjudication in Penn-
sylvania.
ARGUMENT
Petitioner, American Dredging Company (American
Dredging), respectfully submits that the doctrine of forum non
conveniens is an integral feature of admiralty which merits
application to all maritime cases. The doctrine’s central focus
upon the convenience of the parties and the court promotes a
central theme and recurring goal of maritime law - the convenient
(efficient, economical and fair) resolution of maritime disputes
between distant parties engaged in maritime commerce.
The General Maritime Law of the United States
is Applicable to All Cases of
Admiralty Jurisdiction
The Constitution, which explicitly extends the judicial
power of the United States “to all Cases of admiralty and
maritime Jurisdiction” is the source of authority for the develop-
ment of the general maritime law of the United States. U. S.
Const., Art. III, Sec. 2, Cl. 1. The Lottawana, 88 U.S. (21 Wall)
558, 575 (1875); Butler v. Boston Steamship Co., 130 U.S.
527, 556-557,9 S. Ct. 612 (1889). This endowment of judicial
authority is the only instance in which the Constitution grants
jurisdiction over a specific area of substantive law.2 The framers
of the Constitution placed this authority in the national courts in
recognition that protectionism of local interests by state laws and
State courts was potentially devastating to the maritime com-
merce important to the new nation.? The Constitution therefore
2 See: U.S. Const., Art. Ill, generally.
3 See, e.g. James Madison, “Vices of the Political System of the United
States,” The Writings of James Madison (Vol. 2)(G. Hunted. 1901) pp.
361-369, at 263. Letters to Edmund Randolph and George Washing-
ton, dated April 8 and 16, 1987, respectively, /d at 336-340, 339; 344-
352, 347; A. Hamilton, The Federalist, No. 80 at 478; 3 Joseph Story,
Commentaries on the Constitution of the United States , §1662 at
529-530 (L. W. Levy Ed., 1970)
explicitly recognized authority of the national judiciary over all
cases of admiralty and maritime jurisdiction.
In furtherance of its Constitutional authority, the Su-
preme Court has played the leading role in the definition of the
breadth of admiralty jurisdiction and in the formulation of the
general maritime law of the United States. Admiralty jurisdic-
tion was interpreted broadly, and early federal decisions held that
the “admiralty and maritime” jurisdiction would neither be
circumscribed by the narrow rules of English common law nor
be bound to follow principles of English admiralty courts.
DeLovio v. Boit, 7 F. Cas. 418, (C.C.D. Mass., 1815);
The Propeller Genesee Chief v. Fitzhugh, 53 U.S. (12 How.) 443
(1852). As to admiralty jurisdiction, this Court has indicated the
Constitutional reach of admiralty is a matter of judicial cogni-
zance which neither Congress nor the states can modify by
legislation. Crowell v. Benson, 285 U.S. 22, 54-55, 52S. Ct. 285,
294 (1932); The Lottawana, 88 U.S. at 558; The Steamer St.
Lawrence, 66 U.S. (1 Black) 522, 527 (1862) (dictum); Butler,
130 U.S. at 557 (dictum).
Beyond matters of jurisdiction, this Court has played the
paramount role with Congress in the development of the general
maritime law. Simultaneously with the broad interpretation of
admiralty jurisdiction, the United States developed “a maritime
law of our own.” The Lottawana, 88 U.S. (21 Wall) 558, 574
(1875). As articulated in The Lottawana, the Constitutional
grant of judicial power over admiralty cases mandates the
application of a uniform system of maritime law:
One thing, however, is unquestionable: the Con-
stitution must have referred to a system of law co-
extensive with and operating uniformly in the
10
whole country. It certainly could not have been the
intention to place the Rules and limits of maritime
law under the disposal and regulation of the sev-
eral States, as that would have defeated the unifor-
mity and consistency at which the Constitution
aimed on all subjects of a commercial character
affecting the intercourse of the States with each
other or with foreign States.
The Lottawana, 88 U.S. (21 Wall.) at 575.
The role of the Court in the development of uniform
principles of admiralty remains evident in the Court’s modern
decisions in admiralty matters. See, e.g. Miles v. Apex Marine
Corp., 498 U.S. 19, 111 S. Ct. 317, 325-328 (1990), restoring a
uniform rule for wrongful death actions by the survivors of
seamen; Offshore Logistics v. Tallentire,477 U.S. 207, 106S. Ct.
2485, 2494-2500 (1986), upholding a uniform application of the
Death on the High Seas Act, 46 U.S.C.A. §§ 761, 767; Moragne
v. States Marine Lines, Inc., 398 U.S. 375,90 S.Ct. 1772 (1970),
overturning its early holding in The Harrisburg 119 U.S. 199,7
S.Ct. 140 (1886) and recognizing a maritime wrongful death
action for maritime workers in U.S. waters; Kemarec v.
Compagnie Generale Transatlantique, 358 U.S. 625, 630-632,
79 S. Ct. 406 (1959), formulating a uniform liability standard
with respect to non-crewmembers aboard vessels.
The national authority of the Supreme Court and Con-
gress is paramount in the development of maritime law. Under
our federal system, the states exercise a concurrent and comple-
mentary role. In the Judiciary Act of 1789, the first Congress
recognized the jurisdiction of state courts to provide common
law remedies over matters which also fall within the admiralty
jurisdiction of the United States.4 Pursuant to this “concurrent
jurisdiction,” the states may adjudicate in personam claims
cognizable in admiralty, and state laws ma,’ even supplement
admiralty principles within certain limitations. Romero v. Inter-
national Terminal Operating Co., 358 U.S. 354, 373, 79 S. Ct.
468, 480 (1959). While the extent of permissible “supplemen-
tation” is difficult to define with precision, the Court has held that
state laws and jurisprudence may not be applied in a fashion
which would “contravene the essential purposes of, or . . . work
material injury to of such [general maritime] law or interfere with
its proper harmony and uniformity in its international and inter-
state relations.” Knickerbocker Ice Co. v. Stewart, 253 U.S. 149,
160, 40 S. Ct. 438, 440 (1920); see also Kossick v. United Fruit
Co., 365 U.S. 731, 81 S.Ct. 886 (1961); Garrett v. Moore-
McCormack Co., 317 U.S. 239, 63 S.Ct. 246 (1942). As noted
in Washington v. W. C. Dawson & Co., 264 U.S. 219, 44S. Ct.
302 (1924), state laws, even when made applicable to admiralty
through Congressional enactment, may not be applied in a
fashion which would disrupt the uniformity of the general
maritime law:
To prevent this result the Constitution adopted the
law of the sea as the measure of maritime rights
and obligations. The confusion and difficulty, if
vessels were compelled to comply with the local
Statutes at every port, are not difficult to see. Of
4 The original statute granted federal courts “exclusive original cogni-
zance of all civil causes of admiralty and maritime jurisdiction . . .
saving to suitors, in all cases, the right of acommon law remedy, where
the common law is competent to give it.” Judiciary Act of 1789, Ch.
20. | Stat. 73, 76, 77, Comp. Stat. §§ 530, 991: Sec. 9 (Sept. 24, 1789).
12
course, some within the states may prefer local
rules; but the Union was formed with the very
definite design of freeing maritime commerce
from intolerable restrictions incident to such con-
trol. The subject is national. Local interest must
yield to the common welfare. The Constitution is
supreme.
Washington, 264 U.S. at 228.
Il.
The Doctrine of Forum Non Conveniens
Is an Essential and Characteristic
Feature of Admiralty Jurisdiction
The doctrine of forum non conveniens is the legal prin-
ciple which governs the discretionary exercise of jurisdiction in
cases where the forum chosen by the plaintiff may be inconve-
nient for fair and efficient resolution of the dispute at issue.
Pursuant to this doctrine, the trial court may in its discretion
retain jurisdiction over the action or dismiss the case subject to
protecting the right of the plaintiff to proceed in a convenient
alternative forum. In its present form, the doctrine provides the
discretionary guidelines which accord appropriate deference to
the plaintiffs choice of forum while ascertaining the availability
of an alternate forum and examining various private and public
factors affecting the convenient resolution of the dispute at issue.
Piper Aircraft Co. v. Reyno, 454 U.S. 235, 102 S. Ct. 252 (1981).
The modern exposition of the doctrine of forum non
conveniens is articulated in three non-maritime cases. Piper,
supra; Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 67 S. Ct. 839
(1947); Koster v. (American) Lumbermen's Mut. Casualty Co.,
330 U.S. 518, 67 S. Ct. 828 (1947). The roots of this doctrine,
13
however, are firmly grounded in the discretionary exercise of
admiralty jurisdiction. See, e.g. Mason v. Ship Blaireau, 6 U.S.
(2 Cranch) 240 (1804); The Belgenland, 114 U.S. 355,55. Ct.
860 (1885); Charter Shipping Co. v. Bowring, Jones & Tidy,
Lid., 281 U.S. 515, 50S. Ct. 400 (1930); Canada Malting Co. v.
Paterson S.S., Lid.,285U.S.413,52S.Ct.413 (1932); Willendson
v. Forsoket, 29 F. Cas. 1283(D. Pa. 1801)(No. 17,682). As noted
in Justice Black’s dissent to the importation of this doctrine into
common law, the power to decline the exercise of jurisdiction
relates to “reasons peculiar to the special problems of admiralty
and to the extraordinary remedies of equity .. .” Gilbert, 330 U.S.
at 513.
As early as 1804, Chief Justice Marshall, sitting as
Circuit Judge, discussed the discretionary jurisdiction of admi-
ralty in a salvage case involving a French ship saved by British
vessel and brought into an American port. Mason v. Ship
Blaireau, 6 U.S. (2 Cranch) 240 (1804). Although neither
litigant had objected to the proceedings, the Court made the
following observation about the jurisdiction of the admiralty
court:
In this case, a preliminary question has been made,
by the counsel for the plaintiffs, which ought not
to be disregarded. As the parties interested except
the owners of the cargo of the Firm, are not
Americans, a doubt has been suggested, respect-
ing the jurisdiction of the court, and upon a refer-
ence to authorities, the point does not appear to
have been ever settled. These doubts seem rather
founded on the idea, that upon principles of gen-
eral policy, this court ought not to take cognizance
of a case entirely between foreigners, than from
any positive incapacity to do so. On weighing the
considerations drawn from public convenience,
14
those in favor of the jurisdiction, appear much to
overbalance those against it, and it is the opinion
of this court, that, whatever doubts may exist in a
case, where the jurisdiction may be objected to,
there ought to be none where the parties assent to
it.
Mason, 6 U.S. at 264. (Emphasis added.)
In The Belgenland, 114 U.S. 355,5S. Ct. 860 (1885), this
Court examined the exercise of jurisdiction in a case involving
a high seas collision between a Norwegian bark and a Belgian
steamship. The Court enumerated various considerations affect-
ing its exercise of jurisdiction, including the nationality of the
parties, location of the tort, location of the res, convenience of the
parties, treaty provisions, choice of law, etc. Belgenland, 114
U.S. at 361-368. The Court’s approval of the exercise of
jurisdiction implicitly recognized the underlying discretion of
the admiralty court to decline jurisdiction on the basis of these
factors. The Belgenland, 114 U.S. at 367, 368.
This discretion was again recognized by this Court in the
Canada Malting Co. v. Paterson Steamships S.S. Ltd., 285 U.S.
413, 52 S.Ct. 413 (1932), and Charter Shipping Co. v. Bowring,
Jones & Tidy, Ltd.,281 U.S.515,50S.Ct. 400 (1930). In Canada
Malting, Justice Brandeis explicitly upheld the discretion of the
trial court to decline jurisdiction even though the collision
occurred in United States waters and regardless of whether
United States law would have been applicable to the action in
U. S. Courts:
The libelants concede, as they must, that in a suit
in admiralty between foreigners it is ordinarily
within the discretion of the District Court to refuse
to retain jurisdiction, and that the exercise of its
15
discretion will not be disturbed unless abused.
(Citations omitted.)
First. The contention that the jurisdiction was
obligatory rests upon the fact that the collision
occurred within the territorial waters of the United
States. The argument is that a cause of action
arising from a collision occurring on territorial
waters of the United States arises out of its laws,
since within its territory there can be no other law.
(Citations omitted.)
We have no occasion to inquire by what law the
rights of the parties are governed, as we are of the
opinion that, under any view of that question, it lay
within the discretion of the District Court to de-
cline to assume jurisdiction over the controversy.
Canada Malting, 285 U.S. at 418-420.
This Court’s recognition of this doctrine in admiralty and
has been followed by lower federal courts which have often
applied this doctrine to choice of forum issues in maritime
cases.) Likewise, forum non conveniens is recognized by the
5 Ikospentakis v. Thalassic S. 8. Agency, 915 F.2d 176 (Sth Cir. 1990),
Camejo v. Ocean Drilling & Exploration, 838 F.2d 1374 (Sth Cir.
1988), Exxon v. Chick Kam Choo, 817 F.2d 307 (Sth Cir. 1987), rev'd
on other grounds, 486 U.S. 140, 108 S. Ct. 1684 (1988), Cruz v.
Maritime Co. of Philippines, 702 F.2d 47 (2d Cir. 1983); De Mateos
(Continued on next page)
principal treatises on admiralty as an established principle of
maritime law.®
(Continued from previous page)
v. Texaco, Inc., 562 F.2d 895 (3d Cir. 1977), cert. denied, 435 U.S. 904,
98 S. Ct. 1449 (1978); Pain v. United Technologies Corp., 637 F.2d
775 (D. C. Cir. 1980) (involving claims under the Death on the High
Seas Act relating to the helicopter crash into North Sea; Gonzalez v.
Naviera Neptumo A.A., 832 F.2d 876 (Sth Cir. 1987); La Seguridad v.
Transytur Line, 707 F.2d 1304 (11th Cir. 1983); Vargas v. M/V MINI
LAMA, 709 F. Supp. 117(E.D. La. 1989); Pastewka v. Texaco, Inc. 565
F.2d 851 (3d Cir. 1977); Gazis v. John S. Latsis Inc., 729 F. Supp. 979
(S.D. N.Y. 1990); Sherrill v. Brinkerhoff Maritime Drilling, 615 F.
Supp. 1021 (N.D. Cal. 1985); cf Hernandez v. Cali, Inc., 32 A.D.2d
192(N.Y. App. Div. 1969). While recognition of this doctrine has been
largely uniform among the circuits, a few courts have suggested that
when American law is applicable a forum non conveniens dismissal is
improper since it would undermine the application of U.S. law. See:
Zipfel v. Halliburton Co., 832 F.2d 1477, 1486 (9th Cir. 1987), cert.
denied, 486 U.S. 1054, 108 S. Ct. 2819 (1988); Needham v. Phillips
Petroleum Co., 719 F.2d 1481, 1483 (10th Cir. 1983); Szumlicz v.
Norwegian American Line, Inc.,698 F.2d 1192, 1195 (1 1th Cir. 1983);
Fisher v. The Agios Nicolaos V, 628 F.2d 308 (Sth Cir. 1980), cert.
denied, 454 U.S.816, 102 S.Ct. 92 (1981), overruled by /n re Air Crash
near New Orleans, 821 F.2d 1147 (Sth Cir. 1987). The choice of law
question is not at issue in this case.
6 Friedell, Benedict on Admiralty, | §§ 105, 121, 122, 129 pp. 8.41 - 8
57 (7th ed. 1991); Gilmore & Black, The Law of Admiralty, §§ 1-19,
pp. 51-52 (2d ed. 1975); Baer, Admiralty Law of the Supreme Court,
§ 17-2, p. 488 (3d ed. 1979); Healy & Sharp, Admiralty Cases &
Materials, Ch. 2, § F, pp. 157-162 (2d ed. 1986); Schoenbaum,
Admiralty and Maritime Law, §§ 5-8, 8-8, 13-9, 20-6, 11, pp. 189, 270,
477, 478, 639, 651-653 (1987).
17
This Court has never considered the question presented
herein - whether state courts are to apply the maritime doctrine
or state procedure to admiralty cases filed in state court. In Chick
Kam Choo v. Exxon Corporation, 486 U.S. 140, 108 S. Ct. 1684
(1988), the Court considered the related question of whether the
relitigation exception to the Anti-Injunction Act, 28 U.S.C. §
2283, authorized a federal court to enjoin state court consider-
ation of a forum non conveniens question previously considered
by the federal court. In concluding that the relitigation exception
was not applicable, the Court acknowledged, without upholding,
the Fifth Circuit's recognition of the preemptive effect of this
admiralty doctrine. Choo, 486 U.S. at 150, 108 S.Ct. at 1691.
The concurring opinion of Justice White also acknowledged the
“substantial” federal interest in uniformity in admiralty and the
potential preemptive effect of federal forum non conveniens
rulings. Choo, 486 U.S. at 151; 108 S.Ct. at 1692. However, the
precise issue presented here was not decided there.
The Fifth Circuit Court of Appeals has considered con-
flict between this doctrine and state procedure and has held that
“forum non conveniens is ‘a characteristic feature’ of maritime
law” which state and federal courts are bound to apply in the
adjudication of maritime cases. /kospentakis v. Thalassic S.S.
Agency, 915 F.2d 176, 178-180 (Sth Cir. 1990); Camejo v. Ocean
Drilling & Exploration, 838 F.2d 1374 (Sth Cir. 1988), see also:
Exxon Corp. v. Chick Kam Choo, 817 F.2d 307 (Sth Cir. 1987),
rev'd on other grounds, 486 U.S.140, 108 S. Ct. 1684 (1988). In
Ikospentakis, the Fifth Circuit declined to permit a voluntary
dismissal of a Jones Act federal suit because such a dismissal
would have unfairly prejudiced the maritime defendant to state
court litigation without safeguarding its right to a trial in a
convenient forum:
There is some irony in our conclusion. Our court
has previously determined that a federal maritime
defense of forum non conveniens is constitution-
ally supreme in a maritime or Jones Act case over
state laws that do not recognize this doctrine.
Exxon Corp. v. Chick Kam Choo, 817 F.2d at 307
(decision reversed on other grounds). We endorse
that holding again. Louisiana courts have defi-
nitely refused to recognize this ruling. Markzannes,
545 So. 2d at 537. If there were any ambiguity in
Louisiana's law, we would be inclined to enforce
Chick Kam Choo rigorously and hold that there
was no “plain legal prejudice” suffered by these
appellants, because Louisiana courts must recog-
nize the preemptive force of the federal forum non
conveniens doctrine in this seaman’s case. At
some point, Louisiana must bend to the federal
courts’ construction of federal law. However, to
insist that these foreign appellants become guinea
pigs in an effort to overturn Louisiana's erroneous
rule would blink at reality and would needlessly
subject them to considerable expense as well as
legal prejudice for the sake of vindicating prin-
ciple. We need not reach such an unjust result.”
Ikospentakis, 915 F.2d at 180
The discretionary nature of this doctrine and the criteria
considered by the trial court are exactly suited to the conflicts
frequently associated with the exercise of admiralty jurisdiction
over distant parties. The very nature of maritime commerce
necessarily involves contacts and disputes among disparate and
distant interests. The essential role of admiralty jurisdiction in
protecting and promoting maritime commerce therefore recog -
nizes and respects the rights of such distant interests to a fair and
convenient resolution of their disputes. This view of admiralty
19
jurisdiction is reflected in the holding and language of Circuit
Judge Story in DeLovio v. Boit:
The language of the constitution will therefore
warrant the most liberal interpretation; and it may
not be unfit to hold, that it had reference to that
maritime jurisdiction, which commercial conve-
nience, public policy, and national rights, have
contributed to establish with slight local differ-
ences, over all Europe; that jurisdiction, which,
under the name of consular courts, first estab-
lished itself upon the shores of the Mediterranean,
and, from the general equity and simplicity of its
proceedings, soon commended itself to all the
maritime states; that jurisdiction, in short, which,
collecting the wisdom of the civil law, and com-
bining it with the customs and usages of the sea,
produced the venerable Consolato del Mare, and
still continues in its decisions to regulate the com-
merce, the intercourse, and the warfare of man-
kind. (Citations omitted.)
DeLovio, 7 F. Cas. at 443.
In absence of uniform recognition of this doctrine in
admiralty matters, the current practice of multiple adjudications
and extensive forum shopping will continue even after explicit
adverse federal judgments.’ It is difficult to conceive of a greater
(Continued on the next page)
? See, e.g. Villar v. Crowley Maritime Corporation, 780 F Supp. 1467
(S.D. Tex. 1992); Quintero v. Klaveness Ship Lines, 914 F.2d 717 (Sth
Cir. 1990); Zipfel v. Halliburton Co., 832 F.2d 1477, 1486 (9th Cir.
1987), cert. denied, 486 U.S. 1054, 108 S. Ct. 2819 (1988);
20
impediment to maritime commerce than the unfettered exposure
of distant maritime interests to multiple litigation in inconve-
nient fora without regard to uniform principles of admiralty.
Il.
Application of the Doctrine
of Forum Non Conveniens May Not Be
Defeated By Mere Reference to
Substance and Procedure
Forum non conveniens provides fundamental protection
to maritime interests against unrestricted forum shopping. It is
not a mere procedural device to be cast aside by state rules of
practice. In the decision below and in its earlier decision of
Markzannes v. Bermuda Star Cruise Line, Inc., 545 So.2d 537
(Continued from the previous page)
lkospentakis, supra, 915 F.2d at 177. Kassapas v. Arkon Ship-
ping Agency, Inc., 485 So. 2d 565 (La. App. Sth Cir. 1986), cert.
denied, 488 So. 2d 203 (La. 1986) cert. denied, 479 U.S. 940, 107
S.Ct. 422 (1986); Pastewka v. Texaco, Inc., 565 F.2d 851 (3d Cir.
1977); Symeonides v. Cosmar Compania Naviera, S.A.,433 So.
2d 281 (La. App. Ist Cir. 1983), cert. denied, 440 So. 2d 731 (La.
1983), cert. denied, 465 U.S. 1079, 104 S. Ct. 1442 (1984). of
Pastewka v. Texaco, Inc., 565 F.2d 851 (3d Cir. 1977); Fitzgerald
v. Texaco, Inc., 521 F.2d 448 (2d Cir. 1975), cert. denied, 423
U.S. 1052, 96 S. Ct. 781 (1976); see also: Sibaja v. Dow
Chemical Co., 757 F.2d 1215 (11th Cir. 1985), cert. denied, 474
U.S. 948, 106 S. Ct. 347 (1985) and Dow Chemical Co. v. Castro
Alfaro, 786 S.W.2d674 (Tex. 1990), cert. denied, 498 U.S. 1024,
111 S. Ct. 671 (1991) (reflecting the practice of multiple filings
in non-marine cases). See also the arduous trek of the Choo
litigation, cited in the petition for certiorari at pp. 11, 12.
21
(La. 1989), cert. denied, 493 U.S. 1043, 110 S.Ct. 837 (1990),8
the Louisiana Supreme Court concluded that Louisiana courts
were free to apply Louisiana procedure? rather than the doctrine
of forum non conveniens to maritime suits filed in state court.
American Dredging respectfully submits that this conclusion is
incorrect.
The Louisiana Court premised its ruling on the conclu-
sion that forum non conveniens concerns “only” the convenience
of the maritime defendant which does not “rise to a level of a
substantial right.” Miller, 595 So.2d at 619. (J. A. 66). This
conclusion overlooks the critical importance of convenience to
maritime commerce and its significance to maritime law! and
further ignores this Court’s recognition of the significance of
convenience even in a non-maritime setting. Reyno, 454 U.S. at
256; 102 S. Ct. at 266.
It would be a most unfortunate anomaly if the Constitu-
tional protection of maritime commerce could be summarily
defeated by the simple expedient of filing in state court, while
8 In Markzannes, the Louisiana Court overturned the application
of forum non conveniens and applied local procedure to a claim
by a Greek seaman who was injured aboard a Panamanian cruise
vessel en route between Bermuda and Boston. Markozannes v.
Bermuda Star Line, No. 88-C-2440 (La. App. 4th Cir. March 20, 1989
and April 19, 1989), reproduced in the Joint Appendix, pp. 23-30,
rev'd. 545 So.2d 537 (La. 1989).
9 Article 123 of the Louisiana Code of Civil Procedure provides the
State’ s procedural rule which permits forum non conveniens dismissals
in non-maritime cases, but is expressly inapplicable to maritime and
Jones Act cases. La C. Civ. Proc. Art. 123.
!0 See the language of Judge Story in DeLovio, cited infra at 19,20.
22
non-maritime interests have full protection to commercial con-
venience in diversity actions through the Piper, Gulf Oil and
Koster decisions'' and in state actions under La. Article 123.
Petitioner respectfully urges that the concurrent jurisdiction of
the Judiciary Act was never intended to permit the plaintiff to
escape the application of fundamental admiralty principles ar-
ticulated pursuant to this Court’s Constitutional grant of author-
ity.
American Dredging respectfully submits that the Louisi-
ana Court erred through its myopic focus on non-maritime
jurisprudence.'2_ Eschewing an analysis of admiralty jurispru-
dence, the Louisiana Court was persuaded by federal diversity
cases and consideration of the “so-called ‘reverse-Erie’ doc-
trine.” Miller, 595 So.2d at 618 (J.A.65). Without any consid-
eration of the relationship of this doctrine to maritime law, the
Miller Court inferred that forum non conveniens was mere
federal procedure. In place of maritime authority, the Louisiana
Court relied, inter alia, upon this Court’s decision in Missouri ex
rel. Southern R. Co. v. Mayfield, 340 U.S. 1, 71S. Ct. 1 (1950).
In Mayfield, this Court considered whether a Missouri state court
in adjudicating railroad worker claims was bound by the federal
!! Cf. Davis v. Farmers’ Co-Op Equity Co., 262 U.S. 312, 316-318, 43
S.Ct. 556, 558 (1923), noting limitations on state jurisdictional statutes
based in part, upon commercial convenience with respect to interstate
operations protected by the commerce clause.
12 The Louisiana Court's analysis in Miller is contrasted with its
analysis in Green v. Industrial Helicopters, Inc., 593 So.2d 634, 640-
644 (La 1992) wherein the Louisiana Supreme Court reviewed the
maritime jurisprudence and scope of uniformity before determining
that Louisiana local interests warranted application of a Louisiana
strict liability standard to a helicopter crash. In the instant case, there
are no local interests to be protected by Louisiana's non-maritime
procedure.
23
rule of forum non conveniens.'3 This Court held that the state
courts were free to apply or not apply this principle according to
local law. Mayfield, 340 U.S. at 5,71 S.Ct. at 3. The MillerCourt
was then persuaded to apply its local procedure because “the
Jones Act is based upon and incorporates by reference the
FELA.” Miller, 595 So.2d at 618; (J.A. 63, 64).
The decision in Mayfield, though simple and clear, is
inapposite here. Neither the Federal Employer's Liability Act,
45 U.S.C. §§ 51 et seq. nor the underlying claims of railroad
workers involve Constitutional issues of admiralty jurisdiction
or uniform maritime law. While it is true that the Jones Act (46
U.S.C. § 688) incorporates the FELA liability standards, the
incorporation of that standard did not thereby undermine the
Constitutional premise of admiralty jurisdiction or eradicate
uniform principles of admiralty. Congress did not unwittingly
destroy the uniformity of admiralty protected by the Constitution
by adopting for seamen the liability standard applicable to
railroad workers.
The supplantation of maritime law can not be sustained
by mechanical reference to concepts of substance and procedure.
Forum non conveniens is not a mere procedural device so
disconnected from admiralty jurisdiction that it becomes inap-
plicable under a “reverse-Erie” analysis. The “forum non
conveniens problem . . . is inescapably connected with the
substantive rights of the parties in any given type of suit, rather
than being ‘merely’ an ‘administrative’ problem.” A. Bickel,
Forum Non Conveniens in Admiralty,” 35 Corneli L. Quarterly
'3 Forum non conveniens had not long before been incorporated into
common law in the 1947 decisions in Gilbert and Koster, supra
at 13,14.
24
12, 17 (1949). The question presented here is not solved by the
so-called “reverse-Erie” formula. The jurisprudential reference
to “reverse-Erie” stems from considerations of parallel, though
not altogether symmetrical or reciprocal, principles involving
the uniformity doctrine of admiralty, the “savings to suitors”
clause and the Erie doctrine.'4 The uniformity doctrine man-
dates that admiralty principles be applied uniformly by all
federal and state courts. The “savings to suitors” clause allows
maritime claimants access to state courts without infringing
upon those uniform principles. The Erie doctrine mandates that
state substantive principles be applied by federal courts in
diversity cases. Erie R. Co. v. Tompkins, 304 U.S. 64, 58 S. Ct.
817 (1938). The “reverse-Erie” concept is no doctrine at all, but
a handy metaphor to recognize the potential application of
federal or state procedure when not in conflict with controlling
principles. !5
The “reverse-Erie” metaphor cannot provide a mechani-
cal answer by facile reference to concepts of “substance” and
“procedure.” Legal principles do not always fall exactly into
such finite categories. Forum non conveniens has been an
established feature of admiralty since long before the articulation
of the Erie doctrine or the enactment of federal procedural
rules.'© The nominal analysis of the Miller Court overlooks the
reality that many fundamental principles of admiralty, while
14 See the discussion of the Fifth Circuit in Exxon, 817 F.2d at 319.
1S The Miller Court's reference to this Court's decision in Offshore
Logistics, Inc. v. Tallentire, 477 U.S. 207, 106 S. Ct. 2485 (1986),
seems particularly inapposite. Nothing in Tallentire warrants the
disavowal of such a deeply-rooted admiralty principle in favor of a
local procedural rule
16 Fed. Rules Civ. Proc. Rules 1-86, 28 U.S.C.A.
| 25
affecting procedure, are nonetheless characteristic features which
make admiralty a distinct and unique body of law. For example,
maritime law’s protection of seamen finds direct expression in
legal rules which govern procedural questions of burden of proof
and sufficiency of evidence. Garrett v. Moore-McCormack Co.,
317 U.S. 239, 63 S. Ct. 246 (1942); Kossick v. United Fruit Co.,
365 U.S. 731, 81 S. Ct. 886 (1961). The rules are no less
applicable in state court because they impact and conflict with
State procedural rules. See, e.g. Neely v. Hollywood Marine,
Inc., 530 So. 2d 1116, 1122-1123 (La. 1988), cert. denied, 489
U.S. 1080, 109S. Ct. 153 (1989); Bennett v. Sedco Maritime, 520
So. 2d 894, 905 (La. App. 3d Cir. 1987).
In Garrett, this Court upheld the application of the
admiralty burden of proof rule and overturned the decision of the
Pennsylvania Supreme Court, which held the issue was proce-
dural and controlled by state law. Garrett, 317 U.S. at 243, 244:
63S. Ct. at 249, 250. This Court noted that the “deeply rooted”
admiralty rule regarding burden of proof was a part of the very
substance of [the seaman’s] right and [could] not be considered
a mere incident of a form of procedure.” Garrett, 317 U.S. at 252,
253. The language of Justice Black regarding the interplay of
admiralty law and state practice is particularly apposite:
It must be remembered that the state courts have
concurrent jurisdiction with the federal courts to
try actions either under the Merchant Marine Act
or in personam such as maintenance and cure. The
source of the governing law applied is in the
national, not the state, governments. /f by its
practice the state court were permitted substan-
tially to alter the rights of either litigant, as those
rights were established in federal law, the remedy
afforded by the state would not enforce, but would
26
actually deny, federal rights which Congress, by
providing alternative remedies, intended to make
not less, but more secure. (Emphasis added.)
Garrett, 317 U.S. at 245.
This is not to say that state interests are not relevant and
may not be considered. The doctrine is, by nature, a discretionary
function of the local court and consideration of relevant public
and private factors is mandated by the forum non conveniens
process. Therefore, in cases where the state has significant
interest in the dispute, the discretionary balance will undoubt-
edly weigh in favor of retaining jurisdiction. However, in cases
such as this one where there is no such interest, the trial court in
its discretion may dismiss the litigation subject to guaranteeing
the claimant's right to an adjudication in a suitable forum.
The doctrine of forum non conveniens protects the legiti-
mate rights of all maritime litigants. It accords appropriate
deference to the maritime suitor’ s choice of forum while protect-
ing the maritime defendant from exposure to an unreasonable,
vexatious and oppressive forum selection and allowing the trial
court to consider public or local interests in the dispute. Ameri-
can Dredging respectfully submits that this important protection
of the rights of all maritime litigants cannot be defeated as a mere
matter of procedure.
IV.
Application of Forum Non Conveniens
May Not Automatically Be Defeated By
Reference to Applicable Law or
Citizenship of the Parties
The doctrine of forum non conveniens provides a “flex-
ible” discretionary basis for determination of the appropriate
27
forum for adjudication of disputes. Piper, 454 U.S. at 251, 102
S. Ct. at 263. Under its guidance, the trial court first determines
the availability of an alternate forum and then examines the
private and public factors articulated in Gilbert and Koster to
determine whether to adjudicate the dispute in the plaintiff's
chosen forum or dismiss the claim subject to adjudication in an
alternate convenient forum. Piper, 454 U.S. at 249-257, 102
S.Ct. at 262-267.
This doctrine guides the trial court through its forum
analysis and expressly avoids rigid mandatory rules for the
determination of the proper forum. Issues such as the applicable
law and citizenship of the parties, while relevant to the analysis,
are not dispositive of the discretionary process. Piper, 454 U.S.
at 248-250; 102 S.Ct. at 262, 263. The Piper Court upheld these
discretionary principles, relying in part upon its admiralty deci-
sion in Canada Malting Co. v. Paterson Steamships, Ltd., 285
U.S. 413, 52 S.Ct. 412 (1932). Canada Malting involved a
maritime collision dispute between Canadian claimants. The
Court upheld the discretionary dismissal of the suit even though
the collision occurred in U.S. territorial waters and although the
U.S. courts might have applied U.S. law. Canada Malting, 285
U.S. at 420. The libellant sought to overturn the dismissal on
grounds that since the incident was governed by U.S. law,
jurisdiction was mandatory. The Court expressly disavowed this
contention:
We have no occasion to inquire by what law the
rights of the parties are governed, as we are of the
opinion that, under any view of that question, it lay
within the discretion of the District Court to de-
cline to assume jurisdiction over the controversy.
(Emphasis added. )
Canada Malting, 285 U.S. at 419, 470: 52 SG at 414
28
Following the Canada Malting holding, the Piper Court
held that the possibility of a change in the applicable law
unfavorable to the claimant would not automatically defeat the
defendant's forum non conveniens motion. Piper, 454 U.S. at
247, 102 S.Ct. at 261. The Court stated that such a rigid rule
would render the doctrine “ virtually useless” and prevent the
very protection it was designed to afford. Piper, 454 U.S. at 250,
102 S. Ct. at 263. The discretionary forum analysis likewise
considers the citizenship and residence of the parties. The
claimant's choice of “home forum” is given substantial defer-
ence, but not dispositive weight. Koster, 330 U.S. at 524, 525,
67 S.Ct. at 831, 832; Piper, 454 U. S. at 255, 102 S. Ct. at 265,
266. As stated by Justice Marshall in Piper, “[cJitizens or
residents of the forum deserve somewhat more deference than
foreign plaintiffs, but dismissal should not be automatically
barred when a plaintiff filed suit in his home forum. As always,
if the balance of conveniences suggests that trial in the chosen
forum would be unnecessarily burdensome for the defendant or
the court, dismissal is proper.” Piper, U.S. at 255; S.Ct. at 266,
n. 23.
Following the Piper standard, lower federal courts have
held that the application of United States or local law by the
plaintiff’ s chosen forum (or a possible adverse change in appli-
cable law) is not dispositive of the forum analysis. In re Aircrash
near New Orleans, 821 F.2d 1141, 1165 (Sth Cir. 1987) (en
banc); Ali v. Offshore Co., Inc., 753 F.2d 1327, 1333 (Sth Cir.
1985): Cruz v. Maritime Co. of Philippines, 702 F.2d 47, 48 (2d
Cir. 1983); Sherrill v. Binkerhoff Marine Drilling, 615 F.Supp.
1021, 1033-1035, (C.D. Cal. 1985); Vargas v. M/V MINI LAMA,
709 F.Supp. 117, 118 (E. D. La. 1989); Gazis v. John S. Latsis,
Inc., 729 F. Supp. 979, 986-988 (S.D.N.Y. 1990). A few earlier
decisions also recognized this rule, relying upon Canada Mallt-
ing and other authorities. See, e.g.: Fitzgerald v. Texaco, 521
29
F.2d 448 (2d Cir. 1975), cert. denied 433 U.S. 1052, 96 S.Ct. 78}
(1976); affirming dismissal even though foreign law may be less
favorable to claimants; La Seguridad v. Transytur Line, 707 F.2d
1304 (11th Cir. 1983), remanding for possible dismissal even
though U. S. law (COGSA) applicable; Alcoa S.S. Co., Inc. y. M/
V NORDIC REGENT, 654 F.2d 147, 159 (2d Cir. 1980) (en
banc), upholding the dismissal even though the foreign forum
law would allow a lesser recovery. A few decisions have held
that in Jones Act cases, a forum non conveniens dismissal was
prohibited when the seaman claimant would be relegated to a
foreign (non-United States) forum and thereby be denied a Jones
Act remedy. Zipfel v. Halliburton Co., 832 F.2d 1147, (9th Cir.
1987), cert. denied 486 U.S. 1054, 108 S.Ct. 2819 (1988): Dalla
v. Atlas Maritime Co., 562 F.Supp. 752, 758 (C. D. Cal. 1983):
DeMateos v. Texaco, Inc., 562 F.2d 895, 899 (3d Cir. 1977)
(dictum), see also the Fifth Circuit cases of Fisher y. Agios
Nicoloas V, 628 F.2d 308 (1980) and Chiazor v. Transworld
Drilling Co., Lid., 648 F.2d 1015, 1017-1018 (Sth Cir, 1981)
which were overruled in Aircrash, 821 F.2d at 1163, 1164. tothe
extent that they automatically prohibited forum non conveniens
dismissal.
In the instant case, the applicable law - the Jones Act and
the general maritime law - will be applied whether this action is
litigated in Louisiana or in the convenient Pennsylvania forum.
Mr. Miller did not sue in his home forum, and there is absolutely
no connection between Mr. Miller’s claim and Louisiana. Prior
to his accident, he had become a resident of Pennsylvania and had
joined a Pennsylvania union. Through the union, he was em-
ployed by American Dredging, a Pennsylvania corporation. He
was assigned the Tug JOHN R operating on the Delaware River,
the boundary between New Jersey and Pennsylvania. The
subject injury occurred aboard the tug on the Delaware River off
Marcus Hook, Pennsylvania. The vessel is available for inspec-
tion on the Delaware River at the situs of its operations. In no
)
legal or common sense can the Civil District Court of Orleans
Parish of Louisiana be considered the plaintiff's “home forum.”
American Dredging respectfully submits that the trial court
correctly recognized and applied the doctrine of forum non
conveniens to the case at bar.
CONCLUSION
For the foregoing reasons, petitioner, American Dredg-
ing Company, respectfully prays that the decision of the Louisi-
ana Supreme Court be reversed and that the dismissal of this
action by the trial court be reinstated.
Respectfully submitted,
Hhermse) te ~
THOMAS J. W AGNER*
WHITNEY L. COLE
Suite 250 - C & R Building
336 Camp Street
New Orleans, Louisiana 70130-2804
Telephone No.: (504) 525-2141
and
WAGNER, BAGOT & GLEASON
Attorneys for American Dredging Company
*Counsel of Record
31
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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.