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

Supreme Court, U.S.

FILED

tad, OCT 28 1986

JOSEPH F. SPANIOL,

No. 86-195 CLERK

IN THE

Supreme Court of the Gnited States

OCTOBER TERM, 1986

ARKON SHIPPING AGENCY, INC., KONKAR SHIPPING

AGENCIES, S.A. AND KONKAR RESOLUTE CORPORATION,

Petitioners,

vi

AMALIA 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;

Soria LAMBOU; AND VASILIKI LAMBOU,

Respondents.

PETITIONERS’ REPLY BRIEF

GERARD T. GELPI

Counsel of Record

RoBERT P. MCCLESKEY, JR.

GELPI, SULLIVAN, CARROLL AND LABORDE

430 Notre Dame Street

New Orleans, LA 70130

(504) 524-9714

Counsel for Petitioners

PRESS OF BYRON S. ADAMS, WASHINGTON, D.C. (202) 347-8203

TABLE OF CONTENTS

TABLE OF AUTHORITIES .u.......ccccesccoosesessscensees

ARGUMENT

CONCLUSION

POSSE ESESEEEETEHEHEHESEEEEEEHEEESEEEEEEEEEEEEEEEEEHESES

il

TABLE OF AUTHORITIES

CASES: Page

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

S.Ct. 839, 91 L.Ed. 1055 (1947) ...............44 2, 5,

Hellenic Lines, Ltd. v. Rhoditis, 398 U.S. 306, 90

S.Ct. 1731, 26 L.Ed.2d 252 (1970) ......... 2, 4, 5,

Just v. Chambers, 312 U.S. 388, 61 S.Ct. 687, 85

EBB. DOG CERT) ccccccnsiniccsscsedsstsnecctingemscnenntes 4,

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

951 (S.D. NY 1975), aff'd, 535 F.2d 1392 (2nd

Che, TOT. vn scivescnrsniscniacerscenriansmenenennmsensignnin oi

Lauritzen v. Larsen, 345 U.S. 571, 73 S.Ct. 921,

OF TBE. BEBE CEGGR) occsciescctiennnsccsratecssanees z, 4, &,

Missouri ex. rel. Southern Ratiway Company v.

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

CTBT) oveserinisscenessssesenncevimimionsespabrennenmaniiintines 3, 4,

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

(TOTE) vececssentasesseecesnanonsesnenennsaavemeeninntabesenanves 4,

Red Cross Line v. Atlantic Fruit Company, 264

U.S. 109, 44 S.Ct. 274, 68 L.Ed. 582

(TOBE) occenciseresssccsescocenasnsvasensensnanentcmsennonneteatees 4,

STATUTES

ZB U.S.C. SU4OMR) — «..cerrcnrrecccecccoscsnscnoseccnssnoenecenees 2,

ARTICLES:

Currie, “Change of Venue and the Conflict of

Laws,” 22 U.Chicago L.Rev. 405 (1955) _......

6

6

‘lita

IN THE

Sipreme Court of the Gnited Hates

OCTOBER TERM, 1986

Number 86-195

ARKON SHIPPING AGENCY, INC., KONKAR SHIPPING

AGENCIES, S.A. AND KONKAR RESOLUTE CORPORATION,

Petitioners,

i

AMALIA KASSAPAS, INDIVIDUALLY AND AS PERSONAL

REPRESENTATIVE OF THE EsTATE Or GEorcios KASSAPAS,

AnD As TuTrix OF THE EstaTES Or THE MINOR

CHILDREN, NIKOLAS KaASSAPAS AND CONSTANTINOS

KASSAPAS; DESPINA KASSAPAS; CONSTANTINOS KASSAPAS;

GEORGIOUS LAMBOU, INDIVIDUALLY AND

As PERSONAL REPRESENTATIVE OF THE ESTATE OF

ANDREAS LAMBOU; VASILIKI LAMBOU; SorIA LAMBOU; AND

VASILIKI LAMBOU,

Respondents.

PETITIONERS’ REPLY BRIEF

ARGUMENT

In respondents’ brief they make certain preliminary

assertions which they term ‘‘corrections” to the State-

ment Of The Case set forth at pages 4 through 8 of

the petition for writ of certiorari. The first of these

‘corrections’ evidences respondents’ confusion as to

the special application of forum non conveniens in

foreign seamen claims and in a maritime setting. The

refusal to recognize the difference between the doc-

trine of forum non conveniens, which is akin to simple

change of venue (like 28 U.S.C. §1404[a]), and the

doctrine as applied in maritime and foreign seamen

claims, is the core of the dispute before this Hon-

orable Court.

Respondents argue that the federal district court

in New York and the United States Court of Appeals

for the Second Circuit did not determine that the laws

of the United States were inapplicable to plaintiffs’

claims. Respondents attempt to support this state-

ment by pointing out that the opinions of those courts

contain ‘‘only traditional forum non conveniens anal-

ysis and no definitive choice of law analysis or holding

demonstrating inapplicability of United States law.”

(Brief in opposition, at 2). From this statement it

appears respondents admit that the doctrine of forum

non conveniens as applied in maritime and foreign

seamen claims is different and more complex than

the ‘traditional forum non conveniens analysis.”’ This

is precisely the position urged by petitioners. As this

Honorable Court has long held, a detailed choice of

law analysis is the first step in determining the pro-

priety of dismissing a foreign seaman’s claim on the

basis of forum non conveniens. Lauritzen v. Larsen,

345 U.S. 571, 73 S.Ct. 921, 97 L.Ed. 1254 (19583);

Hellenic Lines, Ltd. v. Rhoditis, 398 U.S. 306, 90

S.Ct. 1731, 26 L.Ed.2d 252 (1970). Once that choice

of law question is resolved, then the balancing test

mandated by Gulf Oil Corporation v. Gilbert, 330 U.S.

501, 67 S.Ct. 839, 91 L.Ed. 1055 (1947), and its prog-

eny, is applied to determine whether the case should

be dismissed in favor of a more appropriate forum.

Although the choice of law analysis was not specifi-

cally outlined in the opinions of the New York courts,

the outcome of that choice of law analysis is implicit

in their holdings. The New York federal district court

cited Koupetoris v. Konkar Intrepid Corp., 402

F.Supp. 951 (S.D. NY 1975), affd, 5385 F.2d 1392

(2nd Cir. 1976) as the appropriate analysis which it

followed (Appendix, at 17a and 18a). Koupetoris ap-

plied the mandated choice of law analysis and deter-

mined that neither the Jones Act nor the general

maritime law of the United States was applicable to

plaintiff’s claims. The Court of Appeals for the Sec-

ond Circuit affirmed the analysis of the district court,

and also cited Koupetoris (Appendix, at 19a and 20a).

The choice of law analysis outlined by this Honorable

Court for resolving the plea of forum non conveniens

in foreign seamen claims was followed by the New

York courts and the Louisiana trial court, as this

matter involves much more than simply a transfer of

litigation when it is clear United States law will apply.

Fueled by loose jurisprudential language which fails

to distinguish between the various applications of

forum non conveniens, respondents argue that foreign

seamen claims should be treated just as FELA and

other claims insofar as the doctrine of “forum non

conveniens’”’ is concerned. In support of their position,

respondents rely heavily upon the decision in Missouri

ex. rel. Southern Railway Company v. Mayfield, 340

U.S. 1, 71 S.Ct. 1, 95 L.Ed. 3 (1950). Even a cursory

reading of Mayfield reveals that it did not address

the issue presented by the instant litigation. The doc-

trine of forum non conveniens as it relates to foreign

seamen claims clearly is distinguishable and vastly

more extensive than the very limited issue presented

sented in Mayfield—whether a FELA cause of action

could be brought in Missouri state court by a plaintiff

who was not a resident of Missouri. There was never

any question as to whether FELA, or any other law

of the United States, was applicable. In foreign sea-

men claims, such as those scrutinized by Lawritzen,

Rhoditis and their progeny, the core issue is whether

or not U.S. law and the Jones Act should even apply.

This is an analysis which is peculiar to the admiralty

and maritime law and its treatment of forwm non

conveniens. This issue was never addressed in May-

field. Unlike foreign seamen claims, Mayfield never

had to decide whether FELA, as opposed to the law

of a foreign sovereign, was applicable.

Respondents next cite Norfolk and Western Rail-

way Company v. Beatty, 400 F.Supp. 234 (S.D. Il.

1975), affd, 423 U.S. 1009, 96 S.Ct. 489, 46 L.Ed.2d

381 (1975), for the proposition that Mayfteld ‘‘held”’

that state rules on forum non conveniens govern

FELA and Jones Act matters. This is not the holding

of either Beatty or Mayfield. The language quoted

from Beatty is nothing more than dicta which mis-

construes the Mayfield decision. Neither Mayfield nor

Beatty stand for the proposition that a state is free

to reject the long established doctrine of forum non

conveniens as it relates to choice of law and the treat-

ment of maritime and foreign seamen claims. Such a

rejection would fly in the face of our courts’ efforts

to preserve uniformity in maritime matters.

Respondents end their opposition by citing Red

Cross Line v. Atlantic Fruit Company, 264 U.S. 109,

44 §.Ct. 274, 68 L.Ed. 582 (1924) and Just v. Cham-

bers, 312 U.S. 383, 61 S.Ct. 687, 85 L.Ed. 903 (1941)

for the proposition that uniformity of decision in mar-

itime matters is not of grave importance and should

not be a factor in the instant litigation. However,

both Red Cross and Chambers recognize, and do not

alter, the long established rule that restricts a state

from taking any action to ‘‘contravene any acts of

Congress, nor work any prejudice to the characteristic

features of the maritime law, nor interfere with its

proper harmony and uniformity in its international

and interstate relations.’”’ Chambers, 312 U.S. at 389.

CONCLUSION

Much of the problem encountered throughout the

course of the instant litigation stems from the fact

that the term ‘‘forum non conveniens’’ has been used

very loosely in the jurisprudence and by respondents.

The term has been used to describe the change of

venue provision contained in 28 U.S.C. §1404(a), as

well as the more extensive doctrine which has been

fashioned to apply to foreign seamen claims. This is

evidenced by the fact that the law review article,

Currie, “‘Change of Venue and the Conflict of Laws,”’

22 U.Chicago L.Rev. 405, 415 (1955), cited at pages

6 and 7 of respondents’ opposition deals with §1404(a)

and not the doctrine of forum non conveniens which

is applied to claims involving foreign seamen. Because

of this inconsistency, cases exist which can be cited

for the proposition that “forwm non conveniens”’ is a

matter for the states to apply, or not apply, as they

see fit. However, these cases, like Mayfield and

Beatty, do not deal with foreign seamen claims or the

detailed Lauritzen/Rhoditis/Gilbert analysis. Clearly,

Lauritzen/Rhoditis/Gilbert use the term “forum non

conveniens’’ to encompass more than a venue deter-

mination. Forum non conveniens as discussed by

Lauritzen/Rhoditis/Gilbert involves a detailed choice

of law analysis which has been fashioned by the fed-

eral courts and must be applied by the state courts

hearing foreign seamen claims. It is an analysis which

has become a characteristic feature of the maritime

law, and which properly was applied by the Louisiana

trial court. Failure of the Louisiana appellate court

to uphold the trial court’s application of that doctrine

establishes an impermissible conflict between state and

federal courts hearing identical maritime claims.

Respectfully submitted,

GERARD T. GELPI

Counsel of Record

ROBERT P. MCCLESKEY, JR.

GELPI, SULLIVAN, CARROLL

AND LABORDE

430 Notre Dame Street

New Orleans, LA 70130

Telephone: (504) 524-9714

Attorneys for Petitioners