Opposition Brief — Arkon Shipping Agency, Inc. v. Kassapas

Supreme Court, U.S.

FILED

OCT 7 1986

JOSEPH F. SPANIOL, JR.

ELERK

Number 86-195

In Che

Supreme Court of the United States

OCTOBER TERM, 1986

ARKON SHIPPING AGENCY, INC., KONKAR SHIPPING

AGENCIES, 8.A., AND KONKAR RESOLUTE CORPORATION,

Petitioners,

VERSUS

AMELIA KASSAPAS, INDIVIDUALLY AND AS PERSONAL

REPRESENTATIVE OF THE ESTATE OF GEORGIOS

KASSAPAS, AND AS TUTRIX OF THE ESTATES OF THE

MINOR CHILDREN, NIKOLAS KASSAPAS AND

CONSTANTINOS KASSAPAS; DESPINA KASSAPAS;

CONSTANTINOS KASSAPAS; GEORGIOUS LAMBOU,

INDIVIDUALLY AND AS PERSONAL REPRESENTATIVE OF

THE ESTATE OF ANDREAS LAMBOU; VASILIKI LAMBOU;

SOFIA LAMBOU; AND VASILIKI LAMBOU,

Respondents.

Brief in Opposition to Petition for Writ of Certiorari

to the Supreme Court of the State of Louisiana

PAUL H. DUE

Counsel of Record

5555 Hilton Avenue, 5th Floor

Baton Rouge, LA 70808

Telephone: 504 927-1064

Attorney for Respondents

i

QUESTION PRESENTED

Is a state court, hearing a Jones Act and general

maritime claim pursuant to the “savings to suitors” clause

contained in 28 U.S.C. sec. 1333, able to apply its own rule

with respect to forum non conveniens as it could if it were

hearing a claim under the Federal Employers’ Liability

Act?

il

TABLE OF CONTENTS

Page

Corrections to Statement of the Case .................05: 1

Summary of APPWMOM. ...03.0.cscisessccderrcessdsaneenoasss 3

RIMES, o.iccisicicsicicicciantiguntn ane 4

I ain occ onnncdoaseavabeenanavsaneleeeeeee 9

CN onic i.cccknnccsscdseesesaeeneceenseeeeeeeeeeeee 10

iil

TABLE OF AUTHORITIES

Cases: Page

Fisher v. AGIOS NICOLAOS V, 628 F.2d 308 (5th

Cir. 1980), cert. denied, sub nom Valmas

Brothers Shipping, S.A. v. Fisher, 454 U.S. 816,

102 S.Ct. 92, 70 L.Ed.2d 84 (1981)................ 7

Flores v. Central American Steamship Agency,

Inc., 594 F. Supp. 735 (S.D.N.Y. 1984) ......... 2

Garrett v. Moore-McCormack Company, 317

U.S. 239, 244, 63 S.Ct. 246, 250, 87 L.Ed. 239,

ah ade pa ssidasesinne 3, 4, 5

Gulf Oil Corporation v. Gilbert, 330 U.S. 501, 67

».Ct. 838, 91 L.Ed. 1065 (1947) ................000. 5

Just v. Chambers, 312 U.S. 383, 392, 61 S.Ct. 687,

693, 85 L.Ed. 903, 909 (1941) ..............ccccceeee 8

Karros v. S/D LIRYC, 247 F. Supp. 554 (E.D.

gs oo ichi debe pdakacdisnasesvsces 2

Koupetoris v. Konkar Intrepid Corp., 402 F.Supp.

951, 953 (S.D.N.Y. 1975), aff'd. 535 F.2d 1392

is ecttepnasabdnyshtdcnesseisevsescaseces 7

Missouri ex rel. Southern Railway Company v.

Mayfield, 340 U.S. 1, 4, 5, 71S.Ct. 1, 3, 95

RE ee eee 4,5,9

Norfolk and Western Railway. Company v.

Beatty, 400 F. Supp. 234 (S.D.IIl. 1975), affd,

423 U.S. 1009, 96 S.Ct. 439, 46 L.Ed. 2d

ee caw didaandkastndereces 5

Perez v. OMNIUM TRADER, 174 F. Supp. 876

i uceacaeaibcnsens 2

Red Cross Line v. Atlantic Fruit Company, 264

U.S. 109, 44 S.Ct. 274, 68 L.Ed. 582 (1924) .... 7

Sibaja v. Dow Chemical Company, 757 F.2d

1215 (11th Cir. 1985), cert. denied, -

Liu. , 106 S.Ct. 347, 88 L.Ed.2d 294

eee hoch iies ce cetksakibievsdxcanceasedicdees 6, 7

iv

Cases: Page

San Pedro Compania Armadoras v.

Yannacopoulos, 357 F.2d 737, 740 n.2 (5th Cir.

DUE stds nneiasusind Herinnaeiinseeanknenbatoeaeabteenaey 2

Articles:

Bickel, The Doctrine of Forum Non Conveniens

as Applied in the Federal Courts in Matters of

Admiralty, 35 Cornell L.Q. 12 (1949) ............ 6

Currie, Change of Venue and the Conflict of

Laws, 22 U. Chicago L. Rev. 405,

GE, enicdnda atic taeekcedrbla asstnsciannees 6, 7

Stein, Forum Non Conveniens and the

Redundancy of Court-Access Doctrine, 133 U.

Pa. L. REV. TEL, SHIP CITGO) | ons cvcecssncscsnccee 6

Number 86-195

Inu The

Supreme Court of the Hnited States

OCTOBER TERM, 1986

ARKON SHIPPING AGENCY, INC., KONKAR SHIPPING

AGENCIES, S.A., AND KONKAR RESOLUTE CORPORATION,

Petitioners,

VERSUS

AMELIA KASSAPAS, INDIVIDUALLY AND AS PERSONAL

REPRESENTATIVE OF THE ESTATE OF GEORGIOS

KASSAPAS, AND AS TUTRIX OF THE ESTATES OF THE

MINOR CHILDREN, NIKOLAS KASSAPAS AND

CONSTANTINOS KASSAPAS; DESPINA KASSAPAS;

CONSTANTINOS KASSAPAS; GEORGIOUS LAMBOU,

INDIVIDUALLY AND AS PERSONAL REPRESENTATIVE OF

THE ESTATE OF ANDREAS LAMBOU; VASILIKI LAMBOU;

SOFIA LAMBOU; AND VASILIKI LAMBOU,

Respondents.

Brief in Opposition to Petition for Writ of Certiorari

to the Supreme Court of the State of Louisiana

May It Please The Court:

CORRECTIONS TO STATEMENT OF THE CASE

Undersigned counsel respectfully disagrees with the

statement made by counsel for petitioners that “it was

determined that the laws of the United States were not

applicable to plaintiffs’ claims” (Petition for Certiorari, p.

SS

2 |

5) by the federal district court in New York. On the con-

trary, the memorandum opinion (Appendix, pp. 16a et

seq.) contains only traditional forum non conveniens

analysis and no definitive choice of law analysis or holding

demonstrating inapplicability of United States law. Sim-

ilarly, the unreported opinion of the United States Court

of Appeals for the Second Circuit (Appendix, pp. 19a, 20a)

only states that defendants’ contacts with the United

States were too insubstantial to make one of them an em-

ployer subject to the provisions of the Jones Act. No con-

sideration was given to applicability of American general

maritime law, particularly with respect to the unseawor-

thiness wrongful death action, including consideration of

the fact that Liberian law makes the non-statutory law

(and thus general maritime law of unseaworthiness) of the

United States of America the law of Liberia,* and the

concomitant fact that the ship owner, which would be le-

gally responsible for unseaworthiness, was at all perti-

nent times a Liberian Corporation. Undersigned counsel

also respectfully disagrees with the statement made by

counsel for petitioners that Konkar Resolute Corporation

“maintains its principal place of business in Greece.” (Pe-

tition for Certiorari, p. 4) The Louisiana trial judge in the

instant case, on the contrary, stated that the ship owner’s

“office and principal place of business is in Monrovia, Li-

beria.” (Appendix, p. lla)

*See San Pedro Compania Armadoras v. Yannacopoulos, 357

F.2d 737, 740 n. 2 (5th Cir. 1966). See also Perez v. OMNIUM

TRADER, 174 F. Supp. 876 (E.D.La. 1959); Karros v. S/S LIRYC,

247 F. Supp. 554 (E.D.Va. 1965) and Flores v. Central American

Steamship Agency, Inc., 594 F. Supp. 735 (S.D.N.Y. 1984).

3

SUMMARY OF ARGUMENT

The principle of uniformity is no different in general

maritime or Jones Act litigation than it is in FELA liti-

gation. In both situations the general rule is that the sub-

stantive federal law must be followed by the state court

hearing either type case under the saving to suitors

clause, but as to matters of procedure, the state court is

able to follow its own procedural statutes and require-

ments. While this Court has previously recognized the

difficulty of classifying a particular issue as one of sub-

stance versus procedure, with respect to the specific is-

sue herein, namely, the question of applicability of the

doctrine of forum non conveniens, this Court has previ-

ously definitively ruled that forum non conveniens is not

part of the federal substantive FELA remedy, with the

result that a state court is free to apply its own rule with

respect to forum non conveniens. The same rationale

ought to be applied to the instant Jones Act and unsea-

worthiness cause of action and the petition for certiorari

accordingly ought to be denied.

ARGUMENT

The principle of uniformity, so heavily espoused by

proponents for certiorari herein, is no different in Jones

Act or admiralty claims than it is in FELA claims. Such

was made perfectly clear by this Court in Garrett v.

Moore-McCormack Company, 317 U.S. 239, 244, 63 S.Ct.

246, 250, 87 L.Ed. 239, 243 (1942), one of the cases on

which defense counsel so heavily relies concerning uni-

formity:

“This Court has specifically held that the Jones Act

d

is to have a uniform application throughout the coun-

try unaffected by ‘local view of common law rules.’

Panama R. Co. v. Johnson, 264 U.S. 375, 392, 44

S.Ct. 391, 396, 68 L.Ed. 748. The Act is based upon

and incorporates by reference the Federal Employ-

ers’ Liability Act, 45 U.S.C.A. sec. 51 et seq., which

also requires uniform interpretation. Second Em-

ployers Liability Cases (Mondou v. New York, New

Haven & Hartford Railroad Co.), 223 U.S. U.S. 1, 55

et seq., 32 S.Ct. 169, 177, 56 L.Ed. 327, 38, 38

L.R.A., N.S., 44.”

While counsel for proponents for certiorari argue that

the federal doctrine of forum non conveniens is substan-

tive rather than procedural, said counsel have not at-

tempted to distinguish or explain away this Court’s de-

cision in Missouri ex rel. Southern Railway Company v.

Mayfield, 340 U.S. 1, 4, 5, 71 S.Ct. 1, 3, 95 L.Ed. 3, 8

(1950), specifically relied upon by the Louisiana Court of

Appeal for the Fifth Circuit in the instant case, which ex-

pressly held that the doctrine of forwm non conveniens is

not part of the substantive FELA remedy, and, instead,

any state court hearing a FELA case under the saving to

suitors clause is free to apply its own forum non conven-

ens rule or lack thereof:

“. . Whether a State makes such a choice is, like its

acceptance or rejection of the doctrine of forwm non

conveniens, a question of State law not open to re-

view here.”

*KKK

“Therefore, if the Supreme Court of Missouri

held as it did because it felt under compulsion of fed-

eral law as enunciated by this Court so to hold, it

should be relieved of that compulsion. It should be

5

freed to decide the availability of the principle of

forum non conveniens in these suits according to its

own local law.”

Mayfield, of course, came just three years after Gulf

Oil Corporation v. Gilbert, 330 U.S. 501, 67S. Ct. 838,

91 L.Ed. 1055 (1947), the seminal case recognizing a fed-

eral common law forum non conveniens doctrine. Thus,

after having recognized the doctrine, this Court charac-

terized it as procedural in nature, not substantive, and

hence not binding upon state courts, which are instead

free to apply their own doctrine of forwm non conveniens

or lack thereof.

_ The federal court in Norfolk and Western Railway

Company v. Beatty, 400 F. Supp. 234 (S.D. Ill. 1975),

aff'd, 423 U.S. 1009, 96 S.Ct. 439, 46 L.Ed.2d 381 (1975),

held that the aforementioned pronouncement by this

Court is equally applicable to Jones Act cases tried in state

court as it is to FELA cases tried in state court:

“Since state rules on forum non conveniens govern

in F.E.L.A. and Jones Act matters, by analogy state

procedure should control here. Missouri ex rel.

Southern Railway v. Mayfield, 340 U.S. 1, 71 S.Ct.

1 (1950),” Ud. at 237.)

Since there is no difference in the principle of unifor-

mity between FELA cases tried in state court on the one

hand and Jones Act and general maritime law cases tried

in state court on the other hand, Garrett, supra, the hold-

ing by this Court in Mayfield, supra, concerning forum

non conveniens should be equally applicable and disposi-

tive in the instant case. |

Any remaining doubt concerning the procedural ver-

6

sus substantive nature of forwm non conveniens should

have been put to rest by the recent decision of the United

States Court of Appeals for the Eleventh Circuit in Si-

baja v. Dow Chemical Company, 757 F.2d 1215 (11th Cir.

1985). Holding that a federal court in a diversity case is

not obligated by the Erie doctrine to apply forum non

conveniens law, the Sibaja court linked forum non con-

veniens to a court’s “inherent power” to control its own

docket (/d. at 1218); the Court stated that forwm non ~

conveniens is “a rule of venue, not a rule of decision,” that

it is a matter “completely apart from any application of |

. Substantive law.” (/d. at 1219.) This Court unani- |

mously denied certiorari, U.S. , 106 S.Ct.

347, 88 L.Ed.2d 294 (1985).

Confronted with the jurisprudence clearly demon-

strating that forum non conveniens is obviously proce-

dural only and not substantive, counsel for proponents for

certiorari argue from broad assertions of policy, assert-

ing a need for uniformity in the American maritime law.

This argument is almost completely beside the point, is-

asmuch as it is widely conceded that there is absolutely

no uniformity in the federal court’s reactions to forum non

conveniens pleas in maritime and other cases. See Stein,

Forum Non Conveniens and the Redundancy of Court-

Access Doctrine, 133 U.Pa.L.Rev. 781, 831-40 (1985);

Bickel, The Doctrine of Forum Non Conveniens as Ap-

plied in the Federal Courts in Matters of Admiralty, 35

Cornell L. Q. 12 (1949). The federal forum non conven-

iens jurisprudence has been aptly described as “noto-

riously complex and uncertain,” with no predictability or

uniformity at all. Currie, Change of Venue and the Con-

ee ee Lee ee

7

flict of Laws, 22 U. Chicago L. Rev. 405, 416 (1955). Thus,

it is inconceivable that following the law—which plainly

characterizes forum non conveniens as a procedural rule

of venue and therefore governed by the law of the forum

(see, e.g., Sibaja, supra)—could offend any meaningful

uniformity goal.

Had Fisher v. AGIOS NICOLAOS V, 628 F.2d 308

(5th Cir. 1980), cert. denied, sub nom Valmas Brothers

Shipping, S.A. v. Fisher, 454 U.S. 816, 102 S.Ct. 92, 70

L.Ed.2d 84 (1981), arisen in New York rather than in

Beaumont, for example, one can candidly state that in all

likelihood it would have suffered forwm non conveniens

dismissal in the federal trial court and that decision would

again likely have been affirmed as not constituting an

abuse of discretion, cf. Koupetoris v. Konkar Intrepid

Corp., 402 F.Supp. 951, 953 (S.D.N.Y. 1975), aff'd, 535

F.2d 1392 (2d Cir. 1976)—thus illustrating the disparity

of result even in the federal judicial system depending

upon the vagaries of geography.

This Court has previously recognized that a state is

free to adopt remedies and procedures to apply to admi-

ralty matters, in supplementation of the federal admi-

ralty law, even where the admiralty court would not be

able to accord a similar remedy. In Red Cross Line v. At-

lantic Fruit Company, 264 U.S. 109, 44 S.Ct. 274, 68

L.Ed.582 (1924), for example, this Court, in holding the

New York arbitration law specific performance require-

ments available and enforceable with respect to maritime

contracts, even though a federal court in admiralty could

not then have granted specific performance, stated that

the right of a common law remedy, saved to suitors, does

8

include all means which may be employed to enforce the

right or to redress the injury involved and that a state,

having concurrent jurisdiction, is free to adopt such rem-

edies and to attach to them such incidents, as it sees fit.

That is all that has happened in the instant case.

Louisiana has seen fit to open its courts to litigants over

whom it has requisite jurisdiction and has not seen fit to

empower its courts to decline such jurisdiction under the

doctrine of forum non conveniens.

Even when the matter at issue was properly char-

acterized as substantive rather than procedural, this

Court has still permitted applicability of the state rem-

edy in supplementation of the existing admiralty rem-

edy. In Just v. Chambers, 312 U.S. 383, 392, 61 S.Ct. 687,

693, 85 L.Ed. 903, 909 (1941), for example, this Court, in

recognizing the Florida state survival rule, enunciated the

following in response to the ship owner’s plea of violation

of admiralty uniformity:

“Our decisions in the wrongful death cases also

meet the further argument which is addressed to lack

of uniformity. For whatever lack of uniformity there

may be in giving effect to the state rule as to survival

is equally present when the state rule is applied to

wrongful death, or, for that matter, in any case when

state legislation is upheld in its dealing with local

concerns in the absence of federal legislation. Uni

formity is required only when the essential features

of an exclusive federal jurisdiction are involved. But

as admiralty takes cognizance of maritime torts,

there is no repugnancy to its characteristic features

either in permitting recovery for wrongful death or

in allowing compensation for a wrong to the living to

be obtained from the tort-feasor’s estate.”

9

CONCLUSION

Since a state’s “acceptance or rejection of the doc-

trine of forwm non conveniens [is] a question of State law

not open to review here,” Mayfield, supra, certiorari

should be denied.

Respectfully submitted:

PAUL H. DUE

5555 Hilton Avenue, 5th Floor

Baton Rouge, LA 70808

Telephone: 504 927-1064

Attorney for Respondents

10

CERTIFICATE

I CERTIFY that three copies of the foregoing Brief

in Opposition to Petition for Writ of Certiorari to the Su-

preme Court of the State of Louisiana, have been mailed,

postage prepaid, properly addressed, to:

Gerard T. Gelpi

Gelpi, Sullivan, Carroll & Laborde

430 Notre Dame Street

New Orleans, LA 70130

John C. McHose

Lillick, McHose & Charles

725 South Figueroa Street

Los Angeles, CA 90017

J. Dwight LeBlanc, Jr.

Chaffe, McCall, Phillips, Toler & Sarpy

1500 First NBC Building

New Orleans, LA 70112

Bsciine Rouge, Louisiana, this 7 _ ae tok

Tce! ~

PAUL H. DUE