# Opposition Brief — Diaz v. J. Ray McDermott, S. A.

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 2004
- **Citation:** 541 U.S. 902

## Text

é' - / upreme i,
Neal FILED
No. 03-939
FEB 3 - 2004
OFFICE OF TH
In The E CLERK

Supreme Court of the Anited States

+

VICTOR DIAZ, CHARLES ROUNTREE, ROY EDWARD
CLINE, RICHARD WEBB HARRIS, MITCHELL PHEFFER,
PHILLIPE RICHARD, CLAYTON HORSCHELL, SHANE
BRENT RICHINS, ARTHUR BOETTGER, TIMOTHY
NOBLE, ORDWAYNE P. CHAUVIN, AND
GUILLERMO CARRIZALES-CORTES,

Petitioners,
v.

J. RAY McDERMOTT, S.A., MCDERMOTT INTERNATIONAL,
INC., THE AMERICAN BUREAU OF SHIPPING, INC.,
CCC FABRICACIONES Y CONSTRUCCIONES,
CORPORACION DE INDUSTRIAS CONSTRUCCIONES S.A.
de C.V., GEO-TECHNICAL SERVICES, INC., NORTH BANK
TOWING CORP., and SEABULK OFFSHORE, LTD.,

Respondents.

+

On Petition For A Writ Of Certiorari To The
Louisiana Court Of Appeal, Fourth Circuit

>

RESPONDENTS’ BRIEF IN OPPOSITION TO
PETITION FOR WRIT OF CERTIORARI

a

EDWARD F. LEBRETON, III
Counsel of Record |

FOWLER, RODRIGUEZ, KINGSMILL
FLINT, GRAY & CHALOS, LLP
400 Poydras Street, 30th Floor
New Orleans, LA 70130

(504) 523-2600

JAMES SENTNER, Esq.

GARDERE, WYNNE, SEWELL & RIGGS
1000 Louisiana Street, Suite 3400
Houston, Texas 77002-5000

Counsel for Respondents CCC Fabricaciones
y Construcciones and Corporacion de
Industrias Construcciones S.A. de C.V.

COCKLE LAW BRIEF PRINTING CO. (800) 225-6964
OR CALL COLLECT (402) 342-2831

QUESTION PRESENTED

When a seaman chooses to file an action under the
Jones Act, 46 U.S.C. §688, in a Louisiana state court and
requests a jury on the main demand, may the District
Judge, pursuant to Louisiana procedure, hear evidence
and decide an exception of res judicata in a separate, judge
trial?

il
STATEMENT REGARDING PARTIES

Petitioners are named in the caption.

Respondents, CCC Fabricaciones y Construcciones
(“CCC”) and Corporacion de Industrias Construcciones
S.A. de C.V. (“CIC”) are represented by undersigned
counsel and hereby submit this Brief in Opposition to
Petition for Writ of Certiorari. Pursuant to U.S.S.C. Rule
29(6), CCC advises that it has no parent corporation. CCC
is the parent of CIC. No publically held company owns
10% or more of the stock of either CCC or CIC.

Respondents, McDermott International, Inc. and
McDermott Underwater Services, Inc., listed as Respon-
dents to Petitioner’s Petition for Writ of Certiorari, are
represented by separate counsel and are filing a separate
Brief in Opposition to Petition for Writ of Certiorari.

ill

TABLE OF CONTENTS

Page
Question Presented ............:cccccceceenneeeeeereeeeeeseneeneeeees i
Statement Regarding Parties..............:::ssseeseeeeeeeeeees ii
tele Oe CAGES oscccvecccccevcccresevessesnvessecveceseosereceosecs ill
Mable of Avthorities.....cccsccccrscovevsesesscsesesseeseessosereveors iv
Brief in Opposition to Petition for Writ of Certiorar .... 1
IEG... cisccncnversevervecescenscneseonenvnsenveceverconcooes 1
Statement of the Case. ......cccccccccrsscccssesccoccsceveseeseesees 2
A. Factual Background ................ccccsseersesereseeeees 2
B. Procedural History .............cccccccccccsceceeseseeeeees 6
Reasons for Denying the Petition. ................ssseeeeeeees 8
I. Louisiana Uses the Exception of Res Judi-
cata as a Screening Mechanism to Determine
Whether the Case Should Proceed to Jury
Trial on the Main Demand .................:cceeeeeees 9
II. Louisiana’s Use of the Exception of Res
Judicata is Consistent with Federal Mari-
UA TMT <.-... csuavegiedeusasesebibanucnnconsesesuuonees 11
III. Rules for Jury Trials Made by Judges in
FELA Cases are Not Incorporated in the
SIN CEE. ccprasenenapeonsetobubensetbepenetocesonsnes 15
IV. The Texas Litigation Arising from the Cap-
size of the DLB-269 is Distinguishable Be-
cause the Causes of Action and State
Procedures Are Different ................ccceeeeeeeeeees 19
V. Petitioners Raise a Narrow Issue Which
Affects Them Onll............ccccccccscscccscrceesereseees 20
INR |... sccnsgaceenentesecenerobsvesennmneveevesaceerenes 20

iv

TABLE OF AUTHORITIES

Page
CASES:
Adams v. Johns-Manville Corp., 876 F.2d 702 (9th
Clee, BI oc ceccnvecenressaceredovesonssacinesseenstonncenecepasnnencnetennennasons 13
American Dredging Co. v. Miller, 510 U.S. 443
(FGI) cecccuciseneconcsesonsevscetosestoeeennistersnentasenssnenianeties passim
Aycock v. Ensco Offshore Co., 833 So.2d 1246 (La.
App. 3rd Cir., 12/18/02) ........scescesesseeesseessneeeeneetnecnnes 15
Babineaux v. Pernie-Bailey Drilling Co., 261 La.
1080, 262 So.2d 328 (La. 1977) .........ceeeesseeeeeeeeeereeeeeeees 10
Bailey v. Central Vermont R. Co., 319 U.S. 350
CTIBOT ...... cnnnscarsocendnncersmensnenssecebeinnepsuncctmnneetsneseneuecnians 16
Baltimore S.S. Co. v. Phillips, 274 U.S. 316 (1927).......... 17
Bowden v. State Farm Mut. Auto. Ins., 150 So.2d
655 (La. App. 3rd Cir. 1963) ..........cccsseseeeeeeeeesreeseeeeeeees 11
Brown v. Drillers, Inc., 630 So.2d 741 (La. 1994)............. 10
Callen v. Penn. R. Co., 332 U.S. 625 (1948).......:ceceeeeeeeees 18
Coto v. J. Ray McDermott, S.A., et al., 772 So.2d
828 (La. App. 4th Cir. 2000) ..........ccseeseeeeeeeesesseeeeeeereneeeees 6
Cox v. Roth, 348 U.S. 207 (1955)............cccccccccrccerrerenseeeeees 17
Daigle v. Coastal Marine Inc., 488 So.2d 679 (La.
DIT... iscensoosevntbunseebunseviciciaheemthentnneinecnninnteanieatnaiainine 14
Dice v. Akron, Canton & Y. R. Co., 342 U.S. 359
PSII 5. sciclsiscsccecsenncvipsiccmvasntaceipaconmbennonsondannes 16, 17, 19, 20
Engel v. Davenport, 271 U.S. 33 (1926) ........secceeeeeeeesees 17
Ettelson et al. v. Metropolitian Life Ins. Co., 137
F 2d 62 (3rd Cir. 1943), cert denied, 320 U.S. 777......... 13

TABLE OF AUTHORITIES — Continued

Page
Ex parte: Burlington Northern R. Co., 470 So.2d
BODE (Ale. 1966)..cccccccccccccoscscccvencecevevesesocrscsensosersnneensoeces 17
Gallic v. Baltimore & Ohio R.R., 372 U.S. 108
(BIE occcnexscacciscersenvecstssensieentosnseeneinionsnsaunansenmenaneseaneenens 15
Garrett v. Moore-McCormack Co., 317 U.S. 239
CRIED... ccccvcssserencccnvssnnesessacsemupnioionenesvestataanansd 11, 14, 19
Hopson v. Texaco, Inc., 383 U.S. 262 Ear cadicccidcesmnasenaes 17
Jacob v. New York, 315 U.S. 752 (1941).......ccccccseeeeeeeneeeees 16
Kerman v. American Dredging Co., 355 U.S. 426
CBD onecoverrerrcseiersensesnasetwessessnetastnasneereoncenvssscnesnsonousenstns 17
LeBlanc v. Callais Enterp. Part., Inc., 767 So.2d
823 (La. App. 5th Cir. 2000) ..........ccsesseccessseerereneeeeeeeeees 10
Madruga v. Superior Court of Calif., 346 U.S. 556
CBI. .1..iccccncaedincccccrnsininesssnenibansinmeiecnanmeaemnasaamnnaes 12
Miles v. Apex Marine Corp., 498 U.S. 19 (1990) ..........2++. 17
Milstead v. Diamond M Offshore, Inc., 676 So.2d 89
Cte, TDI ccsccvcosencsnccsnoneccssecsavessasnivesvensenmsemmunannanenenes 14, 15
Missouri ex rel. Southern R. Co. v. Mayfield, 340
CFG 8 CIID) ov seccrcctecccccsecsesoniseccsstuseiesenntnniscssnstenasenpeneten 18
Murphy v. Hoffpauir, 540 So.2d 473 (La. App. 2nd
Che, TODD ceccccertnscvncccccsoscsttncssonsesenntiatemmenmesmncsiemameintaes 10
Red Cross Line v. Atl. Fruit. Co., 264 U.S. 109
(FGA oeccccvcovsseicccscesoscecsncernecsessssinnemammemememnetinnnrnnntees 12
Rivett v. State Farm Fire and Cas. Co., 508 So.2d
TLBEB Ca. 1967) nccccncccccecssseconcsenesercesversosccsnsnsnssenscsseussonens 10

Shell Oil Company v. Kennedy, 344 So.2d 1153 (La.
App. 4th Cir. 1977) .....:ccccsscesscsseeerssseseeeetesersenseens 9, 10, 11

TABLE OF AUTHORITIES -— Continued

Page
Simler v. Conner, 372 U.S. 221, 9 L. Ed. 2d 691, 83
BE Cb, COD (IBGE) occececoveccccesecooeccossscersevseseossscsenesessesosenenes 13
Southern Pacific Co. v. Jensen, 244 U.S. 205 (1917)........ 12
Stier v. Reading & Bates Corp., et al., 992 S. W. 2d
BES (Trac, 1GBB) .cceveevecessscevececesesenersorsnccassvevesecesscoceenoossenss 19
The Osceola, 189 U.S. 158 (1908).........ccccccecceteeeeeseeeeeeeeeees 18
STATUTES AND RULES:
TF .G.G, Beebe 20 oncccesevcccsneccccoresccesecensseevevsenesonsocesnaceserseenons 20
£7,B.B.C. Rule BING). .ccrcevcecsececesvensesevereesenesensonscssosesessseesesvones ii
BE UBC. SIBBT a) ocr ccccoeseceeevrscocsoveveseseconsvecnscovencorsesesessessoes 1
BE UIE.C., BISBAL) .ecceecevecevevevsccecsesesesnsevseenecvenseversconvonsevsever 9
45 U.S.C. 961 Ob 906... ccevcceseevercvecsssccececccrccsssscoves 9, 15, 16, 17
BE TT S.G, BOGB q. ceeveceveessereveseseesecinniuninnnemnennieenenvestes 6, 8,9, 15
4B U.B.C. SEBBLE) .ncsccecvvevccvereserverecseesersescnncsssevevensvesesenenveens 19
La. Const. art. 7, $§10, 29 (1921) ............ccccccccrrescceessceeeeees 15
EA. C.CBP bt. GBT cceevecsesceresenescsscensivsevsnssoreonennsseessnens 7, 9, 10
EB, COB ct. CBD ceeveccresevescessersenevsessevesseersemenneenennns 7,9, 10
Ste ED aah, BBD cecccvecevecessrersssciosscinttainaaas 7,9, 10

MISCELLANEOUS:
Restatement, Conflict of Laws (Rev. 1988) §129 ............... 13

1

BRIEF IN OPPOSITION TO
PETITION FOR WRIT OF CERTIORARI

Respondents CCC Fabricaciones y Construcciones,
S.A. de C.V. (“CCC”) and Corporacion de Industrias Con-
strucciones, S.A. de C.V. (“CIC”), respectfully request that
this Court deny the Petition for Writ of Certiorari seeking
review of the opinion of the Louisiana Court of Appeal,
Fourth Circuit, attached to the Petition as Appendix A, at
App. 1.

+

JURISDICTION

On April 22, 2003, the Louisiana Court of Appeal,
Fourth Circuit, entered an Order denying petitioners
application for a writ of certiorari. Attached to the Petition
as Appendix A, at App. 1. On September 26, 2003, the
Louisiana Supreme Court denied an application for
discretionary review. Order denying writ attached to the
Petition as Appendix B, at App. 3.

The Order of the Louisiana Supreme Court merely
says that the application for writ of certiorari to the
Louisiana Court of Appeal, Fourth Circuit, is denied and
makes no comment on the merits. As the Louisiana Su-
preme Court merely denied petitioners application for
writ, the present issue regarding the propriety of a trial to
the district court of an exception of res judicata may be.
raised on appeal, after final judgment. Accordingly, the
Order is not a final judgment or decree of Louisiana's
highest court, and this Court does not have jurisdiction to
grant the petition for writ of certiorari. 28 U.S.C. §1257(a).

2

Respondents understand that McDermott will address
jurisdiction in greater detail.

+

STATEMENT OF THE CASE
A. Factual Background

The incidents giving rise to this lawsuit occurred in
October of 1995, when the DLB-269 sank off the coast of
Mexico during Hurricane Roxanne. Respondent, CCC
Fabricaciones y Construcciones S.A. de C.V. (hereinafter
“CCC”), a Mexican corporation, was the owner and opera-
tor of the DLB-269, and, at the time, was laying an off-
shore pipeline for Pemex, the Mexican national oil
company. Respondent, Corporacion de Industrias Con-
strucciones, S.A. de C.V. (“CIC”), provided labor to CCC
and was the employer of Mr. Carrizales. Respondents,
McDermott International, Inc. and McDermott Underwa-
ter Services, Inc.,’ provided dive crews which assisted the
DLB-269 in laying pipe on the floor of the Bay of Cam-
peche, and the remaining petitioners were members of the
dive crew. After the DLB-269 sank, 248 crew members,
including all of the petitioners, were rescued at sea and
brought to shore.

Shortly thereafter, each of the McDermott plaintiffs
was provided travel expenses and flown back to the United
States. On October 27, McDermott held a meeting with its
employees in New Orleans to discuss possible settlement

‘ It is unclear whether petitioners have named the correct McDer-
mott corporations. This issue will be addressed by counsel for the
McDermott respondents.

Ne ee ee ee ee ge ee ee

3

of their claims and hosted a banquet to celebrate their safe
return. The meeting was called by Don Terry, Manager of
McDermott’s Diving Division, after he had received several
separate inquiries regarding settlement. At the meeting,
Don Terry addressed the dive crew and informed them
that McDermott would arrange for psychological counsel-
ing that any of the crew felt was needed as a result of their
experiences during Hurricane Roxanne. During the
presentation, Terry informed the men that he had been
granted authority by McDermott to discuss the possibility
of settlement with any of the divers who had not been
physically injured. Terry never threatened any of the
divers that a failure to settle would result in their firing.
After his presentation, Terry left the divers to meet pri-
vately among themselves. The divers selected a spokes-
man, who proposed their initial settlement demand to
Terry. Terry rejected the initial figure as too high, and he
suggested that they end talk of settlement and proceed
with the banquet.

In the meantime, however, the divers learned from
another McDermott spokesman that McDermott’s insur-
ance deductible was $1.5 million, and they surmised that
McDermott would pay this amount, or $75,000 to each of
the McDermott diving related personnel. Shortly thereaf-
ter, the crew's spokesman approached J.J. Riddle of
McDermott and asked whether McDermott would be
willing to pay $75,000 to each member of the twenty-man
dive crew. After consulting with Terry, Riddle advised the
men that McDermott would be willing to pay $75,000 to
each man. After arrangements were made to meet with
McDermott’s attorneys the following day, the settlement
discussions ended.

4

Later that evening, McDermott hosted the survival
celebration for the dive crew as scheduled. The following
day, ten members of the dive crew reported to McDermott’s
office for the express purpose of settling their claims
against all of the defendants in this matter. That day,
October 28th, six of the petitioners herein met individually
with an attorney provided by McDermott at which time a
detailed explanation of seaman’s rights was given to each.
After receiving a full explanation of their rights, including
an explanation that a lawsuit could result in substantial
awards, these six petitioners settled their claims for
$75,000 each.” Each meeting was recorded on videotape.

The videotapes establish that each petitioner was
advised of his right to independent counsel and his right to
bring suit against McDermott, CCC, or any other entity
involved in the sinking of the DLB-269. Each petitioner
verbally acknowledged his understanding of his physical
and emotional condition. Each was advised that he had a
right to recover damages for physical and emotional
injuries. Moreover, each petitioner clearly was advised
that the release encompassed all present or future inju-
ries, whether then known or later discovered. Each peti-
tioner was advised that he was under no obligation to
settle and that he should not do so if he had any hesitation
or doubt. Each petitioner was given ample opportunity to
ask any question about any aspect of his legal rights, the
terms of the settlement, or the actual release document.

? Ordwayne P. Chauvin received $85,000.00 because he also had a
minor physical injury.

5

It is evident from the videotapes that the petitioners
were neither intoxicated nor otherwise mentally impaired.
To the contrary, the behavior of the petitioners on the
videotapes proves that each was coherent, had a complete
understanding of what he was doing, and freely entered
into the settlement agreement presented to him. Each
acknowledged under oath that he, with a full understand-
ing of his legal rights and physical and emotional condi-
tion, was voluntarily settling his claim against
McDermott, CCC, and all other potential parties. Finally,
each received the settlement funds and executed a written
receipt and release and a confirming affidavit.

Five of the other petitioners settled their claims in
much the same manner, albeit at later dates. Like the first
six, each of the five men that settled later was placed
under oath and acknowledged a full understanding of his
legal rights as well as his physical and emotional condi-
tion. Again, each man stated that he had read and under-
stood the settlement agreement and that he was
voluntarily settling his claims against McDermott, CCC,
and any other potential party. Each settlement was
confirmed by a written receipt and release and accompa-
nying affidavit.”

The situation with respect to Mr. Carrizales is similar.
After being rescued, he returned to his home in Mexico.
Later, Mr. Carrizales met with representatives of CCC where
he accepted a settlement of his claims. Mr. Carrizales signed

* Ronald Rozmarynowski was a member of the dive crew and a
plaintiff below, but he did not agree to settle his claim and did not
execute a release. He is not a petitioner in this court.

6

this settlement and release in court in the presence of a
Mexican judge, who approved the settlement in accordance
with Mexican civil procedure. This settlement, approved
by the court, constitutes a judgment of a foreign court and
thus, under the doctrine of comity, must be respected by
American courts. Respondents deny the bald allegation
that Mr. Carrizales was in any way physically threatened
into signing his settlement and release.

In short, all of the petitioners executed valid and
binding releases in which they relinquished all claims that
they may have had against McDermott, CCC, or any other
potential defendants. Consequently, each of the twelve
petitioners is barred from bringing claims against the
respondents in this action.

B. Procedural History

In spite of having signed releases, petitioners filed
suit under the Jones Act, 46 U.S.C. §688, in Civil District
Court in Orleans Parish, Louisiana. Petitioners chose
Louisiana state court and, therefore, chose Louisiana state
procedure. Earlier in this case, respondents filed motions
for summary judgment on the validity of the releases,
which were granted by the trial court. On appeal by the
petitioners to the Louisiana Fourth Circuit Court of
Appeal, the case was remanded to the trial court for
further fact finding on the issue of the validity of the
releases. Opinion attached to the Petition as Appendix D,
at App. 7; Coto v. J. Ray McDermott, S.A., et al., 772 So.2d
828 (La. App. 4th Cir. 2000).

A jury trial of the main demand was set in April 2002
but continued when, on the eve of trial, petitioners’ counsel
held a press conference, which clearly was designed to

7

influence the jury pool. A jury trial of the main demand
was set for a second time on September 9, 2002, and was
scheduled to last six weeks; however, over a month later
only three witnesses had testified. This caused the jury to
-become antagonistic. When there was a dispute over an
alleged comment attributed to an attorney for one of
McDermott’s excess insurers, the Honorable Marvin F.
Gahagan, judge ad hoc, granted McDermott’s and CCC’s
motions for mistrial. The Louisiana Fourth Circuit re-
versed the mistrial, but the Louisiana Supreme Court
reinstated the ruling of the trial court by order dated
October 18, 2002, No. 2002-CC-2585.

Judge Gahagan then recused himself and, thereafter,
the Louisiana Supreme Court appointed the Honorable
Gerald Federoff to sit as judge ad hoc for the duration of
the case. The second trial had been set for six weeks and
was running behind even this extended schedule. Given
the history of this case and the burden it has put on the
trial judges and jurors of the Civil District Court in New
Orleans, Judge Federoff suggested that respondents notice
their previously filed peremptory exceptions of res judi-
cata, for separate evidentiary hearing. This is a procedure
provided by La. C.C.P. arts. 927, 929, and 931 and is heard
by the judge. In Louisiana procedure, the peremptory
exception is a form of gate keeper. A ruling in favor of
respondents would.avoid a trial of the main demand and
save substantial judicial resources and juror time;* on the

‘ Granting respondents’ peremptory exception of res judicata would
end this litigation as it concerns 12 of the 13 plaintiffs from the case
below. The remaining litigation involving the claim of Ronald Roz-
marynowski, who did not sign a release, would take substantially less
time than a jury trial of the claims of all 13 plaintiffs.

other hand, a ruling in favor of petitioners would establish
that the case merits a full jury trial on the main demand.

After both parties submitted briefs, on January 22,
2003, Judge Federoff entered Reasons and Order setting
the exceptions for trial. Reasons and Order attached to the
Petition as Appendix C, at App. 5. In the Reasons and
Order, Judge Federoff stated unequivocally that the
federal substantive maritime law applies to the validity of
the seamen’s releases, and correctly decided that the state
procedural law is applicable when it does not interfere
with the substantive maritime law. Finding no substantive
interference, he ordered that the respondents’ exception of
res judicata be heard by the court without a jury.

Immediately thereafter, petitioners sought writs from
the Louisiana Fourth Circuit, and, on April 22, 2003, the
Louisiana Fourth Circuit upheld Judge Federoff’s order
setting the exceptions for trial. Opinion attached to the
Petition as Appendix C, at App. 1. Petitioners then sought
writs from the Louisiana Supreme Court, which were
denied on September 26, 2003. Order attached to the
Petition as Appendix B, at App. 3. Subsequently, petition-
ers have filed their petition for writ of certiorari to the
Louisiana Fourth Circuit Court of Appeals with this Court.

+

REASONS FOR DENYING THE PETITION

The trial court, affirmed by the Louisiana Fourth
Circuit Court of Appeals, correctly held that, when a
seaman elects to bring his action under the Jones Act, 46
U.S.C. §688, in state court, the determination as to the
validity of a seaman’s release is subject to state rules of
procedure.

|

Under the Louisiana Code of Civil Procedure, when a
plaintiff has executed a valid release, his cause of action
may be dismissed on an peremptory exception of res
judicata. La. C.C.P. art. 927. This exception is tried to the
court, without a jury, and before the main demand. La.
C.C.P. arts. 929, 931. The exception is a gate keeping
device and is consistent with the seaman’s right to jury
trial on the main demand. Shell Oil Company v. Kennedy,
344 So.2d 1153 (La. App. 4th Cir. 1977).

Trial of the exceptions also is consistent with the
Savings to Suitors Clause, 28 U.S.C. §1333(1), and the
Jones Act, 28 U.S.C. §688, because this Court traditionally
has granted the states wide latitude in applying their
procedural rules to maritime cases in state court and
because the trial of the exceptions does not prejudice the
characteristic features of the general maritime law or
interfere with the proper harmony and uniformity of that
law. American Dredging Co. v. Miller, 510 U.S. 443 (1994).

Further, the FELA, 45 U.S.C. $51, et seq., cases cited
by petitioners are distinguishable because the Jones Act
only incorporates the statutory provisions of FELA, and
FELA has no statutory provision for jury trial. Moreover,
the Texas litigation cited by petitioners is based on en-
tirely different causes of action and the procedural rules of
another state, and therefore, is distinguishable.

I. Louisiana Uses the Exception of Res Judicata as
a Screening Mechanism to Determine Whether
the Case Should Proceed to Jury Trial on the
Main Demand

Peremptory exceptions are procedural devices which
allow the district court to adjudicate certain, discrete

10

issues before trial, including prescription, non-joinder of
parties, no cause of action, no right of action, and res
judicata. La. C.C.P. art. 927. Peremptory exceptions may
be tried prior to trial, by the court, sitting without a jury,
and the court may hear evidence and make factual deter-
minations. La. C.C.P. art. 929, 931. Each peremptory
exception is a complete bar to recovery. Therefore, when
the court grants a peremptory exception, the court saves
the judicial resources used in a full trial on the main
demand.

It is well settled under Louisiana law that the proper
procedural mechanism for asserting the defense of com-
promise or release is the peremptory exception of res
judicata. Brown v. Drillers, Inc., 630 So.2d 741, 747 (La.
1994); Rivett v. State Farm Fire and Cas. Co., 508 So.2d
1356 (La. 1987); Murphy v. Hoffpauir, 540 So.2d 473 (La.
App. 2d Cir. 1989). The peremptory exception of res judi-
cata has been used to determine the validity of seamen’s
releases. See, e.g., LeBlanc v. Callais Enterp. Part., Inc.,
767 So.2d 823 (La. App. 5th Cir. 2000). A trial judge may
determine, in advance of a jury trial on the merits, a
peremptory exception of res judicata, even when factual
evidence must be evaluated to make the determination.
Shell Oil Company v. Kennedy, 344 So.2d 1153, 1154 (La.
App. 4th Cir. 1977), citing Babineaux v. Pernie-Bailey
Drilling Co., 261 La. 1080, 262 So.2d 328 (La. 1977).

Petitioners argue that the trial court’s hearing of the
exceptions of res judicata would deny them the right to trial
by jury afforded by the Jones Act. Notably, Louisiana has
held that a judge trial of an exception of compromise does not
deny plaintiff of his right to trial by jury on the main de-
mand. Shell Oil Company v. Kennedy, 344 So.2d 1153 (La.
App. 4th Cir. 1977); citing Babineaux v. Pernie-Bailey

11

Drilling Co., 262 So.2d 328 (La. 1978); Bowden v. State
Farm Mut. Auto. Ins. Co., 150 So.2d 655 (La. App. 3rd Cir.
1963). Indeed, in Shell, the Fourth Circuit rejected the
plaintiff’s argument that factual issues as to the validity
of a compromise were jury questions, concluding that “a
plaintiff is not denied the right of trial by jury because
{Louisiana’s] procedural system requires or permits
certain issues to be decided by the judge alone in advance
of the trial.” Shell Oil, 344 So.2d 1153 at 1154. Rather, the
Court noted that Louisiana procedure “[utilizes] such
devices as the peremptory exception to avoid the full-scale
trial of actions which may be finally determined by the
trial in advance of a conveniently separable issue.” Jd. If
the exception is denied, the main demand is tried to the

jury.

II. Louisiana’s Use of the Exception of Res Judi-
cata is Consistent with Federal Maritime Law

Although the original petition was filed in Louisiana
state court, there is no dispute that the substantive
federal maritime law applies to the validity of these
releases. Reasons and Order of the District Court, at-
tached to the Petition, Appendix C, App. at 5; Garrett v.
Moore-McCormack Co., 317 U.S. 239 (1942). However, the
exception of res judicata is a procedural device, and
procedure is determined by state law.

As this Court has stated, a matter is procedural when
it “does not bear upon the substantive right to recover, and
is not a rule upon which maritime actors rely in making
decisions about primary conduct — how to manage their
business and what precautions to take.” American Dredg-
ing Co. v. Miller, 510 U.S. 443, 454 (1994). A seaman

12

would have the same right to recover under the Jones Act
regardless of whether a judge or jury determines the
validity of his release; likewise, a defendant maritime
employer would manage its business in the same fashion
regardless of whether a judge or jury decided the validity
of a release. Therefore, a trial court’s decision to hear an
exception of res judicata on a seaman’s release is a proce-
dural and not a substantive matter.

Extensive case law of this Court holds that, when it
does not conflict with substantive maritime law, state
courts may apply state procedures in adjudicating mari-
time actions under the “Saving to Suitors” clause. See
American Dredging Co. v. Miller, 510 U.S. 443 (1994),
Madruga v. Superior Court of Calif., 346 U.S. 556 (1954),
Red Cross Line v. Atl. Fruit Co., 264 U.S. 109 (1924). This
Court held that, while a state may not provide for an in
rem action in state court, “the State, having concurrent
jurisdiction [under the “Saving to Suitors” clause], is free
to adopt such remedies, and to attach to them such inci-
dents, as it sees fit.” Red Cross Line, 264 U.S., at 124
(holding that New York’s Arbitration Law may be used to
compel parties in an admiralty action). State procedure is
to be applied in state courts unless it “works material
prejudice to the characteristic features of the general
maritime law or interferes with the proper harmony and
uniformity of that law in its international and interstate
relations.” Miller, 510 U.S., at 447 (quoting Southern
Pacific Co. v. Jensen, 244 U.S. 205, 216 (1917) (upholding
Louisiana’s rejection of the doctrine of forum non conven-
iens).

States are given relatively wide scope in terms of what
is permissible state action in admiralty jurisdiction:

—_

Wherever the boundaries of permissible state
regulation may lie, they do not invalidate state
rejection of forum non conveniens, which is in
two respects quite dissimilar from any other
matter that our opinions have held to be gov-
erned by federal admiralty law: it is procedural
rather than substantive, and it is most unlikely
to produce uniform results.

Miller, 510 U.S., at 453. Thus, where a matter is proce-
dural or does not necessarily require uniformity in appli-
cation, state laws will apply.’

The exception of res judicata is exactly the type of
proceeding that this Court has approved of in Miller.
Petitioners have chosen to bring their case in state court;
while substantive maritime law applies, this case is
subject to state procedure, including the exceptions cre-
ated under the Louisiana Code of Civil Procedure. Further,
the use of the peremptory exception will not “work mate-
rial prejudice to the characteristic features of the general
maritime law” because the trial court will be bound by the

* This is consistent with the general rule of conflicts that whether
an issue is decided by the judge or a jury is determined by the law of
the forum. Restatement, Conflict of Laws (Rev. 1988) §129; Ettelson et
al. v. Metropolitan Life Ins. Co., 137 F.2d 62, 64 (3rd Cir. 1943), cert.
denied, 320 U.S. 777.

For example, in a diversity case in federal court, substantive
questions are governed by state law, but which issues go to the jury is
determined by federal law. Simler v. Conner, 372 U.S. 221, 222, 9
L. Ed. 2d 691, 83 S. Ct. 609 (1963) (whether the propriety of a lawyer's
fee was an equitable issue for the judge or a legal issue for the jury was
determined by federal standards); Adams uv. Johns-Manville Corp., 876
F.2d 702, 709 (9th Cir. 1989) (whether an issue of prior settlement goes
to the jury or the judge decided based on federal standards of what is
equity and what is law).

14

same legal standards under the Jones Act as a jury would
be. The court will follow the federal substantive rules
regarding the burden of proof and standard for determin-
ing whether a seaman’s release is valid. See Reasons and
Order of the District Court attached to the Petition as
Appendix C, at App. 5; Garrett v. Moore-McCormack Co.
supra. The applicants will have the opportunity to present
all of their evidence regarding alleged fraud or coercion to
the court, and the trial judge will apply federal maritime
law to the issue of the plaintiffs’ releases. Such a trial of
the exception of res judicata would affect the plaintiffs’
claims no more than a dismissal for forum non conveniens
and, by the standards established by American Dredging
Co., trial of the exception preserves the characteristic
features of maritime law and maintains its harmony and
uniformity.”

® Several decisions of Louisiana state courts also support this
conclusion.

In Milstead v. Diamond M Offshore, Inc., 676 So.2d 89 (La. 1996),
the Louisiana Supreme Court noted that, even prior to Miller, it had
held that the application of state procedural remedies in both general
maritime cases and Jones Act cases. See id. at 94-95 (citing Daigle v.
Coastal Marine, Inc., 488 So.2d 679 (La. 1986)). Milstead involved a
question of whether a Louisiana appellate court should use a Louisiana
or federal standard in reviewing a Jones Act judge trial. The Louisiana
Supreme Court held that the standard of appellate review is procedural
and that use of the state standard did not prejudice the harmony or
uniformity of maritime law. Moreover, in Milstead, the Louisiana
Supreme Court extended the holding of Daigle, supra, and suggested
that Louisiana courts of appeal should apply the state, rather than
federal, standard of review in both general maritime and Jones Act jury
trials. Milstead, 676 So.2d at 95. In so deciding, the Louisiana Supreme
Court focused on two primary factors: first, that standards of review are
procedural in nature; and, second, that standards of review are not
characteristic features of general maritime law such that application of

(Continued on following page)

Se

15

III. Rules for Jury Trials Made by Judges in FELA
Cases Are Not Incorporated in the Jones Act

Petitioners have based their argument that a jury
must decide the exception of res judicata squarely on
decisions interpreting the Federal Employer’s Liability Act
(“FELA”), 45 U.S.C. §51, et seq. Petition at 8. Petitioners
argue that the Jones Act, 46 U.S.C. §688, incorporates all
provisions of FELA, including its judicial gloss. However,
the Jones Act incorporates “all statutes of the United
States modifying or extending the common-law right or
remedy in cases of personal injury to railway employees[.]”
46 U.S.C. §688. (emphasis added) Accordingly, the incorpo-
ration of FELA into the Jones Act is limited to the statu-
tory provisions of FELA such as the abolition of
contributory negligence and assumption of risk, and the
gloss on those express statutory provisions. In contrast,

Louisiana’s standards of appellate review would interfere with the
proper harmony and uniformity of general maritime law. Id.

More recently, the Louisiana Third Circuit Court of Appeal relied
upon Milstead for the proposition that, while federal law is applicable
to substantive issues in unseaworthiness and Jones Act cases, Louisi-
ana appellate courts are correct to conduct their reviews under the
applicable state law standard of review, manifest error. Aycock v. Ensco
Offshore Co., 833 So.2d 1246 (La. App. 3d Cir. 12/18/02).

Indeed, the application by Louisiana courts of the state standard of
review in Jones Act cases was formerly even more significant, as
Louisiana law provided for appellate review of fact as well as law. La.
Const. art. 7, §§10, 29 (1921). To the contrary, under federal law
appellate courts may not disturb the finding of a jury on the merits
unless there appears to be no reasonable basis for the jury’s finding.
Gallic v. Baltimore & Ohio R.R., 372 U.S. 108 (1963). Thus, the
Louisiana standard controlled in spite of the fact that it differed
considerably from the federal standard.

|
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16

the right to jury trial in FELA cases in state cour*. is judge
made and, therefore, not incorporated into the Jones Act.

FELA contains no provision granting a right to a trial
by jury. 45 U.S.C. §51, et seq. Instead, the right to a trial
by jury in FELA cases in state court is entirely a judicial
creation. In Bailey v. Central Vermont R. Co., 319 U.S. 350
(1942), a FELA case, the issue was whether plaintiff had
presented sufficient proof of negligence for the jury to find
in his favor. The Supreme Court of Vermont held that the
defendant/respondent was entitled to a directed verdict.
Id., at 350. This Court reversed that holding, finding that
there was sufficient evidence to support the verdict, and
stated that “To withdraw such a question from the jury is
to usurp its functions.” Id., at 354. In explaining the
decision, the Court quoted an earlier holding that “The
right to trial by jury is a basic and fundamental feature of
our system of federal jurisprudence which is protected by
the Seventh Amendment.” Jacob v. New York, 315 U.S.
752, 752 (1941) (reversing Federal District Court’s dis-
missal of Jones Act complaint).

Later, in Dice v. Akron, Canton & Y. R. Co., 342 US.
359 (1952), a FELA case from the Supreme Court of Ohio,
the issue was not just whether a directed verdict was
proper in the particular circumstances of the case, but to
whom a question of settlement would be submitted in the
first instance: the judge or the jury. This Court quoted
Bailey that trial by jury was “part and parcel of the rem-
edy afforded railroad worker under the Employer’s Liabil-
ity Act.” Id., at 363 (quoting Bailey, 319 U.S., at 354).
Thus, Dice extended Bailey to create a new rule for jury

17

trials in FELA cases in state court.’ The basis of Dice can
only be a judicially created right peculiar to the circum-
stances of railroad workers and FELA. It clearly is not
based on any statutory provision of FELA or an interpre-
tation of any such statutory provision of FELA, and,
accordingly, the rule of Dice is not incorporated into the
Jones Act.

In contrast, the cases cited by petitioners holding that
FELA jurisprudence is incorporated into the Jones Act
deal exclusively with issues of liability explicitly addressed
in statutory provisions of FELA. Kernan v. American
Dredging Co., 355 U.S. 426, 432-33 (1958) (Jones Act
incorporates case law on FELA provision, 45 U.S.C. §54,
holding employer negligent due to statutory violation); Cox
v. Roth, 348 U.S. 207, 209 (1955) (interpreting FELA
provision, 45 U.S.C. §57, allowing for suits against receiv-
ers as allowing a Jones Act suit against the survivor of a
tortfeasor); Miles v. Apex Marine Corp., 498 U.S. 19, 33
(1990) (seaman’s cause of action under Jones Act survives
to his personal representative by incorporating FELA
provision 45 U.S.C. §59); Engel v. Davenport, 271 US. 33,
38-39 (1926) (incorporating FELA’s two year statute of
limitations into Jones Act, from former §6 of FELA);
Hopson v. Texaco, Inc., 383 U.S. 262, 263-64 (1966) (Jones
Act incorporates FELA case law on definition of “agent” as
used in 45 U.S.C. 851); Baltimore S.S. Co. v. Phillips, 274 .
U.S. 316, 324 (1927) (§1 of FELA was incorporated into the

’ The Dice decision has been criticized by several state courts
hearing FELA cases. See, e.g., Ex parte: Burlington Northern R. Co.,
470 So.2d 1094, 1097 (Ala. 1985).

————

18

Jones Act and supplanted the rule from The Osceola, 189
U.S. 158 (1903)).*

Indeed, FELA and the Jones Act differ substantially
on other non-statutory issues. The issue of releases under
the Jones Act and FELA is particularly pertinent here. A
FELA railroad worker attacking the validity of his release
bears the burden of proving the release to be invalid.
Callen v. Penn. R. Co., 332 U.S. 625 (1948). In Callen, this
Court held that “until the Congress changes the statutory
plan, the releases of railroad employees stand on the same
basis as the releases of others. One who attacks a settle-
ment must bear the burden of showing that the contract
he has made is tainted with invalidity, either by fraud
practiced upon him or by a mutual mistake under which
both parties acted.” Id., at 630. In this specific area where
there are no statutory provisions of FELA, Jones Act
jurisprudence from this Court has established a substan-
tially different legal standard. Under the Jones Act, the
party seeking to enforce a seaman’s release bears the

* The only case cited by petitioners addressing an issue not
specifically included in the statutory language of FELA is Miller,
although the reference to FELA is dicta. This Court, having already
determined that Louisiana's rejection of forum non conveniens was not
in conflict with general maritime law, also noted that the same result
had been reached under FELA. Miller, 510 U.S., at 456. This Court
cited Missouri ex rel. Southern R. Co. v. Mayfield, 340 U.S. 1,5 (1950),
which itself simply held that there was nothing in FELA that would
compel a state to reject its own doctrine of forum non conveniens. Thus,
both Mayfield and Miller simply found that there were no provisions in
either FELA or the Jones Act that would affect a state’s doctrine of
forum non conveniens; this is hardly an importation of a judicial gloss
regarding a non-statutory issue.

7

19

burden of proof in asserting the validity of a release.
Garrett v. Moore-McCormack, 317 U.S. 239, 248 (1942).

It is clear from the jurisprudence of this Ceurt that,
when FELA is silent on a particular point, there may be
variation between the legal standards applied to FELA
and Jones Act cases. Therefore, the Jones Act only incor-
porates statutory provisions of FELA and FELA jurispru-
dence on non-statutory issues is not controlling in Jones
Act cases. Accordingly, Dice is not controlling in this case.

IV. The Texas Litigation Arising from the Capsize
of the DLB-269 is Distinguishable Because the
Causes of Action and State Procedures Are Dif-
ferent

The decisions of the Texas courts to which petitioners
refer, Petition at 12, are distinguishable. 46 U.S.C. §688(b)
bars foreign oil field workers on the outer-continental shelf
of foreign countries from bringing claims under the Jones
Act, the General Maritime Law, or state law. Section
688(b) applies to the plaintiffs in the Texas proceedings,
and, accordingly, they have brought their claims under
Mexican law. Stier v. Reading & Bates Corp., et al., 992
S.W.2d 423 (Tex. 1999). Therefore, the Jones Act is not
involved, and the two cases are distinguishable.

Further, the trials conducted in Texas were on the
plaintiffs’ main demands, not an exception of res judicata.
In addition, there is the obvious difference that the Texas
cases are brought in Texas state court and are subject to
Texas procedural rules. If Texas chooses to grant a jury
trial to the plaintiffs there, it can have no effect on peti-
tioners who chose to bring their cases in Louisiana state
court.

20

V. Petitioners Raise a Narrow Issue Which
Affects Them Only

Petitioners base their request for a writ of certiorari
on an alleged conflict between a state procedure for de-
termining the validity of a release and this Court’s 1952
decision in Dice. Yet, petitioners cite no case in which such
a conflict has arisen in the 52 years since Dice was de-
cided. It, therefore, is obvious that the issue raised by
petitioners is important to them only and that it lacks any
of the factors necessary to be worthy of a writ of certiorari
from this court. U.S.S.C. Rule 10.

2

CONCLUSION

The petition for writ of certiorari should be denied.

Respectfully submitted,

EDWARD F. LEBRETON, III
FOWLER, RODRIGUEZ, KINGSMILL
FLINT, GRAY & CHALOS, LLP
400 Poydras Street, 30th Floor
New Orleans, Louisiana 70130

(504) 523-2600

JAMES SENTNER, ESQ.

GARDERE, WYNNE, SEWELL & RIGGS
1000 Louisiana Street, Suite 3400
Houston, Texas 77002-5000

Counsel for Respondents CCC
Fabricaciones y Construcciones
and Corporacion de Industrias
Construcciones S.A. de C.V.

February 3, 2004

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386001_0879%3A2. Public record. Not legal advice.