Opposition Brief — Bermuda Star Line, Inc. v. Markozannes

| Si pene Court. U.S,

in FILED

z

OFC 14 #89

No. 89-523

JOSEPH F. SPANIOL, JR

CLERK

In The sition tings q

Supreme Court of the United States

October Term, 1989

>

BERMUDA STAR LINE, INC.,

Petitioner,

versus

JOHN SPYRIDON MARKOZANNES,

Respondent

+

BRIEF IN OPPOSITION TO PETITION FOR WRIT OF

CERTIORARI TO THE SUPREME COURT OF THE

STATE OF LOUISIANA

.

C. Joun Caskey

Counsel of Record

628 North Boulevard

Suite 200

Baton Rouge, LA 70802

Telephone: 504/343-9850

Attorney for Respondent

QUESTIONS PRESENTED

Does an interlocutory Order by a State Court denying

a forum non conveniens dismissal of a maritime case consti-

tute a final judgment or decree within the jurisdictional

scope of 28 U.S.C. sec. 1257 for purposes of a review by

this Court?

Is a State Court able to apply its own rule with

respect to forum non conveniens in a Jones Act and a

general maritime claim brought pursuant to the “savings

to suitors” clause contained in 28 U.S.C. sec. 1233, as it

could if it were hearing a claim under the Federal

Employers’ Liability Act?

Sy a ae ar Ese Ae Or eat

ii

TABLE OF CONTENTS

Page

Corrections to Statement of the Case ........ eeuen

Summary of Argument... ....5062.<9sss00seneeee ban

ATQUMOR 0... occ neds cee ctsecsncek tne eee

COMCHABION « ooo sch ccneunneheeeaes ue eee 10

ili

TABLE OF AUTHORITIES

Page

Cases:

Exxon vs. Chick Kam Choo, __ U.S. __, 108 S.Ct.

eee 10

Garrett vs. Moore-McCormack Company, 317 USS.

2 6, 8

Gulf Oil Corp. vs. Gilbert, 330 U.S. 501, 67 S.Ct. 839

EE ee 2

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

ee , ae

In Re: Air Crash Disaster Near New Orleans, Louisi-

nO nees WAS, 1967)..................... 9

Kassapas vs. Arkon Shipping Agency, Inc., 485 So.2d

565 (La. App. 5th Cir., 1986), writ denied 488

So.2d 203, U.S. cert. denied 107 S.Ct. 422 (1986)..... 6

Missouri ex rel. Southern Ry. Co. vs. Mayfield, 340

eh ee 2 48900) ................ 6, 7, 8, 9, 10

Norfolk and Western Railway Company vs. Beatty,

400 FSupp. 234 (S.D. Ill. 1975), aff'd, 423 US.

I MOPS. 200555 eee ee eee eee ee eee 7

Red Cross Line vs. Atlantic Fruit Company, 264 U.S.

EDT 8

Sibaja vs. Dow Chemical Company, 757 F.2d 1215

(CA11, 1985), cert. denied 106 S.Ct. 347 (1985)..... 8

Van Dusen vs. Barrack, 376 U.S. 612, 84 S.Ct. 805

Tee en kee ence ccccccee 8

Wilfried Van Cauwenberghe vs. Baird, 486 U.S. __,

ani oases cess eee n ee eeoee 4

iv

TABLE OF AUTHORITIES - Continued

Page

Zipfel vs. Halliburton Co., 832 F.2d 1477 (CAQ,

1987), cert. denied 108 S.Ct. 2819, as amended

OG1 Tia SUS COP cv cans cccicsacaccucemeu. een 9

STATUTES:

ep teas OE, TE ak x kee eu caus exe eee 3, 4

ae SAA. OR TE 5 a 5 vn occu candebvessaeners eee 2

ARTICLES:

Bickel, The Doctrine of Forum Non Conveniens as

Applied in Federal Courts in Matters of Admiralty,

3S Conmell ©. Go. 22 GUPGRD i 6c. cscs ls ees hein es eee 9

Stein, Forum Non Conveniens and the Redundancy of

Court-Access Doctrine, 133 U. Pa. L.Rev. 781

CHI ss s.n nw a's 0 0 035 aoe Wek SR ee 9

¢——_——__«

No. 89-523

a

~

In The

Supreme Court of the United States

October Term, 1989

BERMUDA STAR LINE, INC.,

Petitioner,

versus

JOHN SPYRIDON MARKOZANNES,

Respondent.

a

4

BRIEF IN OPPOSITION TO PETITION FOR WRIT OF

CERTIORARI TO THE SUPREME COURT OF THE

STATE OF LOUISIANA

sa

4

May It Please The Court:

CORRECTIONS TO STATEMENT OF THE CASE

Undersigned counsel respectfully takes issue with

material omissions from the Statement of the Case made

by counsel for Petitioner. At the outset of litigation, Peti-

tioner stipulated that it was amenable to jurisdiction in

personam in Orleans Parish, Louisiana. Moreover, Peti-

tioner stipulated that its “base of operations” is in Tea-

neck, New Jersey. Unlike the typical maritime case

involving a seaman of foreign nationality, Respondent

was hired directly by the New Jersey-based Petitioner,

and his letter of engagement (i.e., employment contract)

contains no foreign litigation clause whatsoever. The Peti-

tioner cruise line operates cruises to the Caribbean and

Mexico from the Port of New Orleans during the winter

cruising season, principally utilizing the cruise vessels

S/S QUEEN OF BERMUDA and S/S BERMUDA STAR.

On the “off” season, Petitioner’s vessel S/S BERMUDA

STAR operates a cruise service from the Northeast United

States to Bermuda. Respondent sustained a personal

injury on one such domestic cruise. Petitioner and its

cruise ship S/S BERMUDA STAR in particular have been

subjects of multiple personal injury cases in State and

Federal Courts in New Orleans over the years. In this

case, having stipulated to personal jurisdiction and a

New Jersey base of operations, Petitioner would have

been precluded from obtaining a forum non conveniens

dismissal of this case in favor of a foreign forum even had

the case been brought in Federal Court.! Petitioner’s real

objective was to effect a “change of venue” to New York

near its base of operations by means of a forum non

conveniens dismissal. While Petitioner’s position was

arguable, it presents a quite atypical factual and pro-

cedural scenario. In Federal Court, an argument that a

case ought be dismissed on ground of forum non conve-

niens in preference to an alternative American forum has

been procedurally inappropriate since 28 U.S.C. sec.

1404(a) was enacted following Gulf Oil Corp. vs. Gilbert,

330 U.S. 501, 67 S.Ct. 839 (1947).

rx

ss

' Hellenic Lines, Ltd. vs. Rhoditis, 398 U.S. 306, 90 S.Ct. 1731

(1970).

SUMMARY OF ARGUMENT

Petitioner invokes the jurisdiction of this Court pur-

suant to 28 U.S.C. sec. 1257 despite the fact that a denial of

a forum non conveniens dismissal in a maritime case is

patently an interlocutory order by State or Federal crite-

ria. 28 U.S.C. sec. 1257 authorizes a review by this Court

of “[flinal judgments or decrees” rendered by the Louisi-

ana Supreme Court, and Respondent respectfully submits

that the Louisiana Supreme Court’s reinstatement of the

Trial Court’s interlocutory order dismissing Petitioner’s

forum non conveniens defense does not rise to the status of

a final judgment or decree.

The principle of uniformity is no different in general

maritime or Jones Act litigation than it is in Federal

Employers’ Liability Act litigation. In both instances, the

general rule is that the substantive Federal law must be

followed by the State Court hearing the matter under the

Savings to Suitors Statute, but in matters of procedure the

State Court is able to follow its own statutes and require-

ments. While it is often difficult to classify a particular

issue as entirely substantive versus procedural, neverthe-

less this Court has previously definitively ruled that

forum non conveniens is not a part of the Federal substan-

tive FELA remedy, with the result that a State Court is

free to apply its own rule with respect to that defense.

The same rationale ought to be applied to the instant

Jones Act and unseaworthiness case, and the Petition for

Certiorari accordingly ought to be denied.

»

A

ARGUMENT

It would be most extraordinary for this Court to

review an interlocutory order of a State Supreme Court

reinstating a Trial Court’s denial of a defense. Certainly

under Federal procedural guidelines, a majority of the

Federal Courts of Appeals have held that an order deny-

ing a motion to dismiss on the ground of forum non

conveniens is not immediately appealable, and this Court

has recently so held. Wilfried Van Cauwenberghe vs. Baird,

486 U.S. __, 108 S.Ct. 1945 (1988). Similarly, Respondent

doubts that the denial of a forum non conveniens defense

rises to the status of a “final judgment or decree” contem-

plated by the review grant relied upon by Petitioner in 28

U.S.C. sec. 1257. With respect, Respondent suggests that

this Court is without the cited statutory authority to

review the interlocutory order issued by the Louisiana

Supreme Court.

Although uniformity is the rallying cry of Petitioner,

the effective result of Petitioner’s forum non conveniens

defense would have been the same had Petitioner been

favored with a Federal forum in addressing the defense

on the merits. The concept of jurisdiction in Louisiana

and all State Courts is considerably more narrow than the

constitutional grant in favor of courts of the United States

in maritime cases. A fortiori, there is characteristically less

frequent opportunity for the defense of forum non conve-

niens to be raised in State Court because the defense

technically assumes valid jurisdiction and venue.

In the case at bar, Petitioner stipulated to valid in

personam jurisdiction by the Louisiana State Court, and

moreover stipulated to the fact that its base of operations

is in the State of New Jersey. Not only are Petitioner's

cruise vessels frequent visitors to the Port of New

Orleans, but the Port of New Orleans is additionally the

departure and termination point for cruises during the

high winter season. Significantly, Petitioner has been a

frequent litigator in State and Federal Court in New

Orleans over the years in personal injury cases. It is

perhaps less than a statement of advocacy to suggest that

most Federal and State Courts would have been inclined

to dismiss Petitioner’s forum non conveniens argument on

the merits. Hellenic Lines, Ltd. vs. Rhoditis, 398 U.S. 306, 90

S.Ct. 1731 (1970).

Thus, with the foregoing factual scenario offering

Petitioner a remote chance of prevailing on the forum non

conveniens issue at best, Petitioner sought at the outset to

characterize its forum non conveniens dispute in terms of a

matter of monumental importance. Louisiana is patently

not an “open forum” state and has recently enacted a

statute giving its courts the heretofore unrecognized right

to dismiss a case on forum non conveniens grounds. The

statute in question explicitly excepts maritime cases from

the scope of forum non conveniens dismissals. The Court

will note that the Louisiana appellate disagreement

between the Fourth Circuit Court of Appeal and the

Louisiana Supreme Court in large measure dealt with

interpretation of that recently enacted statute, with the

Louisiana Supreme Court definitively stating that the

forum non conveniens statute did not contemplate mar-

itime cases.

However, this is not the first time that Louisiana

procedural law in the area of forum non conveniens and

maritime cases has come to the attention of this Court.

Petitioner fails to note for the Court that a United States

Supreme Court Writ of Certiorari was sought, and

denied, in Kassapas vs. Arkon Shipping Agency, Inc., 485

So.2d 565 (La. App. 5th Cir., 1986), writ denied 488 So.2d

203, U.S. cert. denied 107 S.Ct. 422 (1986). In Kassapas the

Louisiana Court-of Appeal for the Fifth Circuit had noted,

with concurrence by the Louisiana Supreme Court, that

the non-statutory doctrine of forum non conveniens was

unavailable to maritime litigants in cases brought pur-

suant to the Savings to Suitors Statute in Louisiana State

Court. The underlying rationale of the decision was Loui-

siana’s historic posture as a civilian jurisdiction free of

non-statutory procedural remedies and this Court’s deci-

sion in Missouri ex rel. Southern Ry Co. vs. Mayfield, 340

U.S. 1, 71 S.Ct. 1 (1950).

The principle of uniformity relied upon by Petitioner

in argument is no different in Jones Act or maritime

claims than it is in Federal Employers’ Liability Act

claims. This was made perfectly clear by this Court in

Garrett vs. Moore-McCormack Company, 317 U.S. 239, 244,

63 S.Ct. 246, 250 (1942):

“This Court has specifically held that the Jones

Act is to have a uniform application throughout

the country unaffected by ‘local view of com-

mon 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 Employers’ Liability Act, 45

U.S.C.A. sec. 51 et seq., which also requires uni-

form interpretation. Second Employers Liability

Cases (Mondou vs. New York, New Haven &

Hartford Railroad Co.), 223 U.S.1, 55 et seq., 32

S.Ct. 169, 177, 56 L.Ed. 327, 38, 38 L.R.A., N'S.,

44.”

In the case of Missouri ex rel. Southern Railway Company vs.

Mayfield, 340 U.S. 1, 4, 5, 71 S.Ct. 1, 3 (1950). specifically

relied upon by the Louisiana Supreme Court, this Court

noted:

”

. . . Whether a State makes such a choice is,

like its acceptance or rejection of the doctrine of

forum non conveniens, a question of State law not

open to review here.”

» * .

“Therefore, if the Supreme Court of Mis-

souri held as it did because it felt under compul-

sion of federal law as enunciated by this Court

so to hold, it should be relieved of that compul-

sion. It should be freed to decide the availability

of the principle of forum non conveniens in these

suits according to its own local law.”

Petitioner mentions Mayfield only in passing, with a par-

enthetical statement suggesting that “issues of unifor-

mity” are present in Jones Act cases that are not apparent

in FELA cases. Petitioner’s Writ, p. 17. Contrary to this

unsupported proposition, the Court in Norfolk and West-

ern Railway Company vs. Beatty, 400 F.Supp. 234, 237 (S.D.

Ill. 1975), aff’d, 423 U.S. 1009, 96 S.Ct. 439 (1975) held that

this Court’s Mayfield pronouncement was equally applica-

ble to Jones Act cases tried in State Court:

“Since state rules on forum non conveniens gov-

ern in FE.L.A. and Jones Act matters, by anal-

Ogy state procedure should control here.

issouri ex rel. Southern Railway vs. Mayfield, 340

U.S. 1, 71 S.Ct. 1 (1950).”

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, and the

holding by this Court in Mayfield, supra, concerning forum

non conveniens should be equally applicable and disposi-

tive in the instance case. The Court's attention is drawn

to the United States Court of Appeals decision from the

Eleventh Circuit in Sibaja vs. Dow Chemical Company, 757

F.2d 1215 (CA 11, 1985), cert. denied 106 S.Ct. 347 (1985),

in which the Court held that a Federal Court in a diver-

sity case is not obligated by the Erie doctrine to apply

state forum non conveniens law, which the Court charac-

terized as “a rule of venue, not a rule of decision” and a

matter “completely apart from any application of .. .

substantive law.”

This Court has previously recognized that a state is

free to adopt remedies and procedures in maritime cases

in supplementation of Federal law, even where an admi-

ralty court would not be able to accord a similar remedy.

For example, in Red Cross Line vs. Atlantic Fruit Company,

264 U.S. 109, 44 S.Ct. 274 (1924). this Court noted that the

right of a commordaw-remedy afforded suitors does not

include all means which may be employed to enforce the

right or redress the injury involved, and conversely that a

state having concurrent jurisdiction is free to adopt such

remedies and attach to them such incidents as it sees fit.

In the present case, the Louisiana Supreme Court has

continued a history of judicial observations that non-

statutory arguments of forum non conveniens are not rec-

ognized in the purely statutory framework of Louisiana’s

procedural law. Obviously, the defense of forum non con-

veniens is procedural only and not substantive. A change

in courtrooms at least ideally ought not bring about a

change of substantive law. Van Dusen vs. Barrack, 376 U.S.

612, 639, 84 S.Ct. 805, 821 (1964). Louisiana currently has

a statutory procedural device for urging a forum non

conveniens dismissal of a case. However, Louisiana’s

Supreme Court has interpreted that statute in this case

not to include within its scope Jones Act or maritime

cases. It is the prerogative of the State of Louisiana to

make procedural distinctions of this nature. Mayfield,

supra.

Petitioner argues the need for uniformity in the

American maritime law, blurring the distinction between

the procedural implications and differences in fora con-

templated by the Savings to Suitors Statute and substan-

tive maritime law. Petitioner assumes a uniformity in

forum non conveniens procedural law in the Federal Courts

and in states other than Louisiana in the maritime con-

text. Forum non conveniens is a matter committed to the

wide discretion of the Trial Court, and it is commonly

conceded that there is absolutely no uniformity even in

Federal practice in the area of forum non conveniens in

maritime and other cases. See Stein, Forum Non Conve-

niens and the Redundancy of Court-Access Doctrine, 133

U.Pa.L.Rev. 781, 831-40 (1985); Bickel, The Doctrine of

Forum Non Conveniens as Applied in the Federal Courts in

Matters of Admiralty, 35 Cornell L. Q. 12 (1949). There is

inconsistency in the Federal Circuits currently in cases of

forum non conveniens involving seamen in such areas as

whether or not clear applicability of the Jones Act pre-

cludes a forum non conveniens dismissal. Compare, Zipfel

vs. Halliburton Co., 832 F.2d 1477 (CA9, 1987), cert. denied

108 S.Ct. 2819, as amended 861 F.2d 565 (1988) with In Re:

Air Crash Disaster Near New Orleans, Louisiana, 821 F.2d

1147, 1164, note 29 (CA5 1987).

10

Thus, it is doubtful whether in actual practice recog-

nition by Louisiana State Courts of a forum non conveniens

non-statutory defense would bring about any “unifor-

mity” in application at all, and certainly Petitioner cannot

point to a single body of principles which indisputably

constitutes the procedural “law” on forum non conveniens

at present. The case of Exxon vs. Chick Kam Choo, __ U.S.

__, 108 S.Ct. 1684 (1988) does not mandate a reversal of

the historical distinction between substantive and pro-

cedural law in forum non conveniens decisions made here-

tofore by this Court. Uniformity of decisions and

protection of judgments issues addressed in Exxon more

properly dealt with the finality of decisions on forum non

conveniens made in the first instance by a Federal Court.

These issues are obviously not present in the case at bar.

,

-

CONCLUSION

Louisiana’s appreciation of the doctrine of forum non

conveniens is a matter entirely procedural and not open to

review in the context of this Case. Mayfield, supra. The

goal of substantive uniformity necessary for FELA and

Jones Act cases brought in State Court is and must be

recognized in Louisiana. However, the same procedural

freedom that a state has to apply its own understanding

of forum non conveniens in an FELA case is open to Louisi-

ana logically in a Jones Act case as well. This Court

respectfully ought not recognize jurisdiction to review an

interlocutory order of the Louisiana Supreme Court rein-

stating a Trial Court’s denial of a forum non conveniens

11

defense. Moreover, on the merits certiorari should be

denied.

RESPECTFULLY SUBMITTED:

C. JouHn Caskey

628 North Boulevard, Suite 200

Baton Rouge, LA 70802

Telephone: (504) 343-9850

Attorney for Respondent