Petition for Writ of Certiorari — Aquafaith Shipping, Ltd. v. Jarillas
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Supreme Court, U. 5, }
92-459 FILED
No. 92- SEP 14 1992
mastanatiidibad CLERK
- a
IN THE
Supreme Court of the United States
OCTOBER TERM, 1992
AQUAFAITH SHIPPING, LTD. and
SEVEN SEAS MARITIME, LTD.,
. Petitioners,
EUFEMIA R. JARILLAS, Individually,
as Personal Representative of
the Estate of Leopoldo L. Jarillas, and as
Natural Tutrix of Their Minor Children,
= Respondent.
Petition for a Writ of Certiorari to the
United States Court of Appeals
for the Fifth Circuit
PETITION FOR A WRIT OF CERTIORARI
ROBERT B, DEANE
Counsel of Record
KENNETH J. SERVAY
DOUGLAS L. GRUNDMEYER
__CHAFFE, MCCALL, PHILLIPs,
TOLER & SARPY
2300 Energy Centre
1100 Poydras Street
New Orleans, LA 70163-2300
(504) 585-7000
Attorneys for Petitioners,
Aquafaith Shipping, Ltd. and
September 14, 1992 Seven Seas Maritime, Ltd.
WILSON - EPEes PRINTING Co., INC. - 789-0096 - WASHINGTON, D.C. 2000!
QUESTIONS PRESENTED
1. Does the federal common law of foreign relations,
specifically the act of state doctrine, authorize removal of
a state court action as a preemptive federal question not-
withstanding the “well pleaded complaint” rule?
2. Can a plaintiff file suit in state court to invalidate
an official act of the Government of the Philippines in its
own territory and evade federal jurisdiction by omitting
from its pleadings the foreign sovereign’s essential role
in the case?
3. Did the Fifth Circuit err in remanding to state
court a suit seeking to invalidate an official act of the
Government of the Philippines in its own territory?
4. Did the Fifth Circuit violate this Court’s controlling
jurisprudence by dismissing a federal declaratory judg-
ment action because of a parallel proceeding in a state
court, where the dismissal and remand strip petitioners of
access to the fundamental federal maritime doctrine of
forum non conveniens?
ii
LIST OF INTERESTED PERSONS AND
RULE 29.1 NOTATION
The parties to the proceeding below were petitioners—
Aquafaith Shipping, Ltd. and Seven Seas Maritime, Ltd.
—and respondent, Eufemia R. Jarillas, individually, as
personal representative of the Estate of Leopoldo L.
Jarillas, and as natural tutrix of their minor children.
Petitioners certify that they have no parent or sub-
sidiary companies to be listed under this Court’s Rule
29.1.
TABLE OF CONTENTS
QUESTIONS PRESENTED
LIST OF PARTIES AND RULE 29.1 NOTATION
TABLE OF AUTHORITIES...
OPINIONS BELOW .....
nl, SS ES
STATUTES INVOLVED...
STATEMENT OF THE CASE _.
I
B. The District Court Proceedings
C. Proceedings Before the Fifth Circuit .
REASONS FOR GRANTING THE WRIT ___
I. THE FIFTH CIRCUIT’S DECISION DI-
RECTLY CONTRAVENES THIS COURT'S
JURISPRUDENCE ESTABLISHING THE
COMPLETE PREEMPTION OF THE FED.-
ERAL ACT OF STATE DOCTRINE
A. The Federal Act of State Doctrine Raises a
Preemptive Federal Question That Author-
izes Federal Question Removal Jurisdiction
Notwithstanding the “Well Pleaded Com-
oe Sw SRS eae ee
B. A Plaintiff Suing in State Court to Set Aside
a Valid Settlement Officially Approved by
the Government of the Philippines in Its
Own Territory Cannot Evade Federal Ques-
tion Jurisdiction and the Act of State Doc-
trine by Artful Pleading
(iii)
Page
oocrtlr/F fF
pend
11
11
11
14
iv
TABLE OF CONTENTS—Continued
II. THE FIFTH CIRCUIT’S DISMISSAL OF PE-
TITIONERS’ PARALLEL FEDERAL DE-
CLARATORY JUDGMENT ACTION CON-
TRAVENES THIS COURT’S MANDATE TO
MAINTAIN SUCH ACTIONS WHERE STATE
COURTS HAVE REFUSED TO PROTECT A
PARTY’S FEDERAL RIGHTS ............000000.........
A. The Fifth Circuit’s Dismissal Usurps the Dis-
trict Court’s Discretion and Contravenes the
Standards of Brillhart v. Excess Insurance
Co. and Subsequent Decisions of this Court....
B. Petitioners Have Been Stripped of a Funda-
mental Defense by Louisiana’s Refusal to
Recognize the Doctrine of Forum Non Con-
veniens in Maritime Cases ....................2....0...-.
C. The Fifth Circuit’s Order Remanding This
Maritime Cause of Action to the Court of A
State That Statutorily Denies Application of
the Doctrine of Forum Non Conveniens De-
stroys the Uniformity of Federal Maritime
CONCLUSION ............... LIISA SED on ESOT SUT
Page
16
17
20
22
25
Vv
TABLE OF AUTHORITIES
CASES Page
Aquafaith Shipping, Ltd. v. Jarillas, 963 F.2d 806
Coe Cy FI ii a ee passim
Banco Nacional de Cuba v. Sabbatino, 376 U.S. 398
a een OPENS ME ON NR Pe en il 11
Bremen v. Zapata Off-Shore Co., 407 U.S. 1 (1972) .. 21
Brillhart v. Excess Insurance Co., 316 U.S. 491
| TY SEM AE LUN Ro ice ee —=.passim
Camejo v. Ocean Drilling & Exploration, 838 F.2d
omre (oon Ce, POR) ee. 23
Canada Malting Co. v. Paterson Co., 285 U.S. 413
CIR cetsacissices teil th oe eco 20
Carnival Cruise Lines v. Shute, 111 S.Ct. 1522
OED hevicicicticcsnisseaec ee: Tr ae ROR OMe SPE, AE 21
Caterpillar Inc. v. Williams, 482 U.S. 386 (1987),
quoting Metropolitan Life Insurance Co. v.
Taylor, 481 U.S. 58, 107 S.Ct. 1542, 95 L.Ed.2d
Oe CRE iden ee eee een 12
Chick Kam Choo v. Exxon, 486 U.S. 140 (1988) __. 23
Christianson v. Colt Industries, 486 U.S. 800
Fa, Ea MENS SANA man Ey clone tiny ty Clos, ae 14
Deford v. Soo Line Railroad Co., 867 F.2d 1080 d
(8th Cir.), cert. denied, 492 U.S. 927 (1989) ..12, 13, 15
Federated Department Stores, Inc. v. Moitie, 452
ims Re RU ko eee 14
Fisher v. White, 715 F.Supp. 37 (E.D.N.Y. 1989) .. 14
ern California, 463 U.S. 1 | PE eee aaa OS 14
Garrett v. Moore-McCormack Co., Inc., 317 US.
wee (1942) .................... ME eR I Or, 1 WA 22
Gulf Oil Corp. v. Gilbert, 330 U.S. 501 20GT? ......... 20
Ikospentakis v. Thalassic Steamship Agency, 915
We 296 (0 Cle, 1000) ie oe: 23
Illinois v. City of Milwaukee, 406 U.S. 91 (1972). 13
Kermarec v. Compagnie Generale Transatlantique,
Oe Ces GW CI oor veissiscu ee ee 22
Ass’n, 635 F.2d 797 (10th Cir. 1980), cert. de-
nied, 451 U.S. 1018 (1981)... eee 14
vi
TABLE OF AUTHORITIES—Continued
Page
Maria Victoria Naviera, S.A. v. Cementos Del
Valle, S.A., 759 F.2d 1027 (2d Cir. 1985) ............. 23
Miller v. American Dredging Co., 595 So.2d 615
(La. 1992), petition for writ filed sub nom.
American Dredging Co. v. Miller, No. 91-1950,
60 U.S.L.W. 3844 (U.S. May 29, 1992) .............. §, 21
~ Panama Railroad Co. v. Johnson, 264 U.S. 375
G RUINED isicscanedscdcanccennicocsnanedacasspuummiarsniicmbanaae iets neers 22
Piper Aircraft Co. v. Reyno, 454 U.S. 235 (1981).. 20, 21,
24
Pope & Talbot, Inc. v. Hawn, 346 U.S. 406 (1953) .. 22
Provident Tradesmens Bank & Trust Co. v.
Patterson, 390 U.S. 102 (1968) ........0.......... 16, 17, 18, 19
Singalas v. Lido Maritime, Inc., 776 F.2d 1512
Obs: he) Ae | PR ee io & 23
The Belgenland, 114 U.S. 355 (1885) —........000000..... 20
Underhill v. Hernandez, 168 U.S. 250 (1897) ........ 11
Van Camp v. AT&T Information Systems, 963 F.2d
R1Q CO Gee: TOD wivcsvccdecictscnccccceeeeee 12, 15
Will v. Calvert Fire Insurance Co., 437 U.S. 655
CRI isn ak cc ee 16, 17, 18, 19
Zipfel v. Haliburton Co., 832 F.2d 1477 (9th Cir.
1987), cert. denied, 486 U.S. 1054 (1988) _............ 23
CONSTITUTIONAL PROVISIONS, STATUTES,
RULES
rk Be” eae TO. Speen nner n eens: 3, 11
is Se RR SG Reman S. 3,11
oh Re a ) Ne rire 3, 11,22
ts Gs ee | Seater our wae. 3
if Es SO , % SeMppeRe en NeIaT felenrenees parts 3, 22
Bik Te S| 1S ) nT mS Uue a 3
Bis kk & SM MNeNR DEIR Reta Teter tran bcs 3
I TEs Fe wis civkicsiciscesnatcictivlecmsiidagieaeenaaeeenel 2,9,13
Lik Fl SOO RUN RATEN L ME NRCS TI NUIA 2,3
LR ee & | FONE Canina ms cece. ues 2
28 U.S.C. §§ 1441 (a), (b), and (c) ............. ane 3, 8
ge Tae ft) ewe, ne eee 3
28 U.S.C. §§ 2201-2202 .............. sdtiisbraa sical aieadiblaice 3
OB UR 6 Ge ekskiceiicktemeiiinnenieecuseaeeal passim
vii
TABLE OF AUTHORITIES—Continued
Page
La. Code Civ. Proc. art.123.... tice 4
La. Code Civ. Proc. art. 123(C)...........000022 21
Rule 13.1, Supreme Couit of the United States _. 3
Rule 29.1, Supreme Court of the United States __. ii
OTHER AUTHORITIES
Wright, Miller & Cooper, FEDERAL PRACTICE AND
PROCEDURE § 3722, at 276 (1985) psereueuiecaal 13
IN THE
Supreme Court of the United States
OCTOBER TERM, 1992
No. 92- ———
AQUAFAITH SHIPPING, LTD. and
SEVEN SEAS MARITIME, LTD.,
‘ Petitioners,
EUFEMIA R. JARILLAS, Individually,
as Personal Representative of
the Estate of Leopoldo L. Jarillas, and as
Natural Tutrix of Their Minor Children,
Respondent.
Petition for a Writ of Certiorari to the
United States Court of Appeals
for the Fifth Circuit
PETITION FOR A WRIT OF CERTIORARI
Petitioners, Aquafaith Shipping, Ltd. and Seven Seas
Maritime, Ltd., respectfully ask this Court to grant
certiorari to review the judgment and opinion of the
United States Court of Appeals for the Fifth Circuit
entered in consolidated civil proceedings on June 24, 1992.
OPINIONS BELOW
The opinion of the Court of Appeals for the Fifth Cir-
cuit, which is reported at 963 F.2d 806, is reprinted in
the appendix hereto, pp. la-7a, infra.
The minute entries and judgments of the United States
District Court for the Eastern District of Louisiana that
<i a
2
were the subject of the appeal are unpublished and are
likewise reprinted in the appendix at 8a-19a, infra.
JURISDICTION
Respondent Eufemia R. Jarillas filed suit on August 30,
1989 in the 29th Judicial District Court, -Parish of St.
Charles, State of Louisiana, alleging claims under the
Jones Act and the general maritime law of the United
States resulting from the death of her husband, a Filipino
seaman, aboard a foreign flag vessel on the High Seas
(Appendix, 22a-32a). Respondent additionally sought to
invalidate a prior settlement of her claims and to recover
punitive damages against petitioners on allegations of
duress, deception, and coercion in signing the release. Jd.
Respondent’s “Receipt and Release” is reprinted in the
appendix hereto at 33a-37a, infra.
Invoking the federal removal statute, 28 U.S.C. § 1441,
and federal question jurisdiction, 28 U.S.C. § 1331, peti-
tioners removed respondent’s state court lawsuit on Sep-
tember 11, 1989 to the United States District Court for
the Eastern District of Louisiana (Appendix, 38a-40a).
On the same day, petitioners filed a complaint for declara-
tory relief in federal district court, invoking federal ques-
tion jurisdiction under 28 U.S.C. § 1331, as well as
admiralty jurisdiction under 28 U.S.C. § 1333 (Appendix,
41a-47a). In an order entered on September 22, 1989, the
district court consolidated respondent’s removed action
and petitioners’ declaratory judgment action.
In a minute entry entered on September 14, 1990
( Appendix, 10a-12a), the district court denied respondent’s
motions to dismiss and remand. By minute entry entered
on March 14, 1991 (Appendix 13a-19a), after considering
the criteria established by this Court in Brillhart v. Ex-
cess Insurance Co., 316 U.S. 491 (1942), the district
court maintained its jurisdiction over the declaratory
judgment action and the removed action and dismissed
3
them on forum non conveniens grounds in favor of a
proceeding in the Philippines. In accordance with that
order, the court thereafter rendered judgments entered
on March 29, 1991, dismissing the consolidated actions
(Appendix, 8a-9a).
On April 15, 1991, respondent filed a notice of appeal
under 28 U.S.C. § 1291. The United States Court of Ap-
peals for the Fifth Circuit rendered its judgment on
June 24, 1992, reversing the district court’s judgment.
Both the removed action and the suit for declaratory
judgment were remanded to the district court with in-
structions to remand respondent’s suit to state court and
to dismiss the petitioners’ declaratory judgment action
(Appendix, la-7a). After obtaining an extension of
time, petitioners timely filed a petition for rehearing and
a suggestion for rehearing en banc on July 22,1992. The
court of appeals denied both requests on August 6, 1992
(Appendix, 20a-21a).
On August 7, 1992, petitioners filed a motion to stay the
mandate of the Fifth Circuit’s judgment in order to pre-
pare and file this petition for a writ of certiorari in this
Court before September 17, 1992. On August 19, 1992,
the Fifth Circuit granted a Stay, and petitioners now
invoke the jurisdiction of this Court under 28 U.S.C.
$ 1254(1), having filed their petition according to the
conditions of the Fifth Circuit’s order and within the time
period provided by 28 U.S.C. § 2101(c) and this Court’s
Rule 13.1.
STATUTES INVOLVED
The following provisions of the Constitution of the
United States are implicated in this case: U.S. Const. art.
I, § 8, els. 3 and 10; art. III, s 2, cl. 1; and art. VI, el. 2
(the Supremacy Clause). The following federal statutes
are likewise implicated: (1) 28 U.S.C. § 1381: (2) 28
U.S.C. § 1833; (3) 28 U.S.C. $1441l(a), (b), and (ce):
and (4) 28 U.S.C. §§ 2201-2202. This case further im-
4
plicates the following state statute: La. Code Civ. Proc.
art. 123. The full texts of these provisions are set forth_
in the appendix, 61la-65a.
STATEMENT OF THE CASE
A. Preface
This case raises important federal questions under the
act of state doctrine, the removal statute, the declaratory
judgment statute, and the maritime doctrine of forwm non
conveniens that warrant this Court’s review. The issues
presented affect the public rights of foreign nations and
their citizens, as well as the private rights of these liti-
gants as defined by their own government. A citizen of
the Republic of the Philippines has filed suit in Louisiana
state court to invalidate a death claim settlement, while
neglecting to plead that the settlement was executed in
the Philippines and expressly approved through an official
public act of an agency of the Philippine Government ex-
ercising its authority in its own territory and according
to its own law. Relying on the “well pleaded complaint”
rule, the Fifth Circuit reversed the district court’s ex-
press holding that plaintiff could not avoid the federal
“act of state” doctrine and federal removal jurisdiction
by omitting these crucial details from her state court pe-
tition. Thus, this case questions whether the federal com-
mon law of foreign relations, specifically the act of state
doctrine, completely preempts state law and authorizes re-
moval under federal question jurisdiction notwithstanding
the “well pleaded complaint” rule. It likewise questions
whether a plaintiff can evade federal jurisdiction by
neglecting, through artful pleading, to mention the Philip-
pine Government’s official approval of the settlement she
is asking the state court to nullify.
This petition further raises far-reaching questions con-
cerning the scope of federal declaratory judgment actions
and the uniformity of federal maritime law, particularly
the application of the doctrine of forwm non conveniens.
5
The district court maintained jurisdiction over petition-
ers’ parallel declaratory judgment action to uphold the
settlement agreement, consolidating it with the removal
action and dismissing the case under the maritime doc-
trine of forum non conveniens. The district court recog-
nized that petitioners’ right to assert the federal mari-
time doctrine of forum non conveniens would be denied
by the Louisiana state courts pursuart to a state statute.'
However, the Fifth Circuit reversed, reasoning that the
forum non conveniens question could be litigated in state
court, despite express state law to the contrary. In so
holding, the Fifth Circuit usurped the district court’s
discretion in deciding whether to entertain declaratory
judgment actions and ignored this Court’s Brillhart man-
date, which supports the district court’s action in this
case. In view of the important federal questions pre-
sented, inci;ding the impact of this case on United States
foreign relations law, petitioners submit that this Court
should grant a writ of certiorari.
B. The District Court Proceedings
Respondent is the widow of Leopoldo Jarillas, who was
employed as a seaman on board the M/V ALFA, a Cypriot
flag vessel. Petitioner Aquafaith, a Cypriot corporation,
is the owner of the vessel. Petitioner Seven Seas, a Brit-
ish corporation, is the vessel operator’s London agent.
On November 16, 1988, the ALFA was involved in a col-
lision in the Baltic Sea. Leopoldo Jarillas disappeared
and is now presumed dead.
Decedent was a citizen and resident of the Philippines,
as are his wife and children. He was employed aboard
1 La. Code Civ. P. art. 123 (Appendix, 65a); Miller v. American
Dredging Co., 595 So2d 615 (La. 1992). A _ separate petition
for certiorari challenging Louisiana’s defiant refusal to apply forum
non conveniens in state-filed maritime cases is now pending in this
Court in the matter entitled American Dredging Co. v. Miller, No.
91-1950, 60 U.S.L.W. 3844 (U.S. May 29, 1992). Petitioners re-
spectfully suggest that this Court should grant writs in this case as
well as in Miller to address this recurring issue and to correct
Louisiana’s aberration on the uniformity of maritime law.
6
the ALFA under a standard form contract of the Philip-
pine Overseas Employment Administration (“POEA”’),
which he executed in the Philippines on July 7, 1988. His
contract expressly provided th.t the POEA and the Philip-
pine Courts of Justice wouid have exclusive jurisdiction
over all disputes arising out of the contract. In accord-
ance with Philippine law, decedent’s employment contract
was filed with and approved by the POEA.
The POEA, an agency of the Philippine government, is
charged with overseeing the employment of Filipinos by
foreign entities. Two of its functions are to establish the
compensation owed by the employer in the case of injury
to or death of a Filipino seaman and to advise and pro-
tect the interests of Filipino employees or their survivors
concerning serious employment-related issues. In addition
to authorizing the standard form contract for the employ-
ment of seamen, the POEA reviews the settlement of
claims by Filipino seamen/employees in the Philippines
and determines whether to approve them.
In January 1989, a representative of petitioners ap-
proached respondent and advised her that they were pre-
pared to settle any claims arising from the death of her
husband by paying an amount greater than the benefits
required under the POEA contract, rules, and regulations.
On January 9, 1989, respondent, accompanied by her
uncle and an attorney representing petitioners, appeared
in the POEA offices in Metro Manila before Maria Lourdes
Cortez, a Senior Overseas Employment Officer of the
POEA. Respondent voluntarily agreed to settle all claims
for the sum of P220,000 Philippine pesos. Because POEA
regulations and the approved contract required a death
benefit of P170,000, the agreed upon sum was P50,000
above the legally mandated death benefits. The settlement
released petitioners and anyone else connected with the
M/V ALFA-from any further potential liability arising
from the death of seaman Jarillas. This agreement was
memorialized in a written receipt and release signed by
respondent (Appendix, 33a-37a).
7
As part of the receipt and release, Mrs. Jarillas re-
sponded to several questions in her own handwriting. She
acknowledged: (1) that she had read the settlement pa-
pers; (2) that she understood she was signing a receipt
and release; (3) that she understood that signing the
release settled all claims arising out of the death of her
husband; and (4) that she had received 220,000 Philip-
pine pesos in settlement of all claims (Appendix, 34a-35a).
Her signature was notarized by the Notary Public of the
POEA and was witnessed and accepted for filing by
Maria Lourdes Cortez, in her capacity as the Overseas
Employment Officer of the POFA. Jd.
Jose S. Brillantes, the Philippine Government Labor
Attache to the United States and the official POEA rep-
resentative in the United States, testified by deposition
in this case that the POFRA is a governmental agency un-
der the Department of Labor of the Philippines that has
several functions, including promoting the overseas em-
ployment of Philippine workers and protecting such
workers’ interests. It has established rules and regula-
tions for the employment of Philippine workers and in-
sures that the contract of employment between the for-
eign employer and the worker conforms to minimum
POEA standards. It adjudicates disputes between Philip-
pine workers and their overseas employers and assists
seamen in resolving and settling claims with their em-
ployers. He testified that the signature of the Senior
Overseas Employment Officer of the POEA and the filing
of the document with the POEA constituted the POERA’s
approval of the receipt and release. Any claim concern-
ing the validity of the receipt and release would fall
within the original and exclusive jurisdiction of the POE A.
Furthermore, the POEA regards any foreign court’s con-
sideration of a claim brought by a Philippine worker
against his foreign employer as undermining the POEA’s
execution of the Philippine government’s policy.
In this particular case, the POEA has officially declared
and confirmed that the death compensation of Leopoldo
8
Jarillas was paid to his surviving spouse, Eufemia Jarillas,
on January 9, 1989 before Lourdes M. Cortez, Senior
Overseas Employment Officer of the Welfare and Em-
ployment Office of the POEA, and that the copy of the
worldwide receipt and release executed by Mrs. Eufemia
Jarillas is on file with the POEA. See sworn statement
of Crescencio M. Siddayao, Deputy Administrator for
Employment and Welfare, reprinted at 48a-51la, below.
As part of its function to conciliate the claims of seamen
and their beneficiaries against their employers and agents,
the POEA considers such a settlement agreed upon before
a POEFA officer to be valid and binding. 7d. Mr. Siddayao
declares, ‘As far as this Administration [the POEA] is
concerned, the settlement of the case of A/B Jarillas be-
fore the WEO [the Welfare and Employment Office of
the POEA] is considered closed and terminated.” Jd. Mr.
Siddayao further notes that in Executive Order No. 247,
which is entitled “Reorganizing the Philippine Overseas
Employment Administration and For Other Purposes,”
Corazon C. Aquino, then President of the Philippines, or-
dered the POEA to exercise original and exclusive juris-
diction to hear claims arising out of the employer-em-
ployee relationship involving overseas Filipino workers.
Id. Executive Order No. 247 attached to the Siddayao
affidavit is reprinted in the appendix hereto, at 54a-60a,
infra.
Despite her Philippine government approved settlement,
Mrs. Jarillas retained Louisiana counsel and brought suit
on August 30, 1989 in Louisiana state court (Appendix,
22a-32a). In addition to asserting claims under the Jones
Act and the General Maritime Law, she separately al-
leged that the settlement she had confected with petition-
ers was invalid and that she was entitled to punitive
damages because of defendants’ alleged misconduct in co-
ercing her into the settlement. /d.
Petitioners removed respondent’s state court action to
federal court under 28 U.S.C. § 1441(b) and (c), as-
9
serting “federal question” jurisdiction (28 U.S.C. § 1331)
(Appendix, 38a-40a). Respondent was not simply filing a
Jones Act and general maritime law claim under the
“saving to suitors” clause. Rather, she was mounting an
independent attack on the official public act of a foreign
sovereign government by challenging the validity of her
prior settlement executed in the Philippines under the
authority and approval of the Philippine Government.
Thus, the attempted settlement annulment and punitive
damage claims are independent claims governed by the
federal common law of foreign relations—in particular,
the “act of state” doctrine—and present a separate and
independent federal question supporting removal. Peti-
tioners also filed a declaratory judgment action based on
federal question and admiralty jurisdiction, seeking a
declaration that the Philippine settlement was valid and
that it precluded respondent from bringing her state court
action (Appendix, 41a-47a). The district court consoli-
dated the two actions.
Respondent filed motions to dismiss the declaratory
judgment action and to remand the removed action, al-
leging that the district court lacked subject-matter juris-
diction. In opposition, petitioners produced the foregoing
evidence establishing, inter alia, that the Philippine Gov-
ernment closely regulated the employment of Filipino sea-
men and the settlement of their claims and that the re-
spondent’s government approved settlement consummated
in the Philippines under the authority of the POEA was
final and binding under Philippine law.
The district court denied respondent’s motions, finding
that her claims to invalidate the release and for punitive
damages were separate and independent from the wrong-
ful death claims (Appendix, 10a-12a). Because the claims
concerning the settlement required the court to review
the regulatory process and official acts of a foreign govern-
ment within its own territory, they invoked federal juris-
diction and were properly before the court (id.).
10
The district court thereafter dismissed both consolidated
actions on grounds of forum non conveniens, finding that
Philippine law controlled the validity of the release and
the employment contract of decedent and that all relevant
factors militated in favor of a Philippine forum. The dis-
trict court conditioned its dismissal on petitioners’ ap-
pearance and cooperation in the appropriate Philippine
forum. | Appendix, 13a-19a).
C. Proceedings Before the Fifth Circuit
On respondent’s appeal from the district court’s judg-
ments, the Fifth Circuit reversed and remanded. Aqua-
faith Shipping, Ltd. v. Jarillas, 963 F.2d 806 (5th Cir.
1992), reprinted at la-7a, below. The appellate court
vacated the forum non conveniens dismissal and ordered
the district court to remand the removed action to state
court and to dismiss the declaratory judgment action
(Appendix, 6a-7a).
Without reaching petitioners’ arguments based on the
federal common law of foreign relations and the act of
state doctrine, the court of appeals concluded that the
“well pleaded complaint” rule barred removal of the state
court action, because respondent’s original petition failed
to state that the Philippine Government had approved the
settlement. According to the Fifth Circuit, respondent’s
pleadings in state court had invoked no federal question,
and petitioners alone had raised federal law as a matter
of defense. (Appendix, at 4a-6a).
Upon concluding that the case should have been re-
manded to state court, the court of appeals next held that
the district court should have dismissed petitioners’ declar-
atory judgment action. Citing this Court’s opinion in
Brillhart v. Excess Insurance Co., 316 U.S. 491 (1942),
the Fifth Circuit concluded that allowing the federal court
action to continue would interfere with a parallel action
in a state court that was capable of resolving the dispute.
CC
11
The Fifth Circuit further observed, “The state court might
not apply the same doctrine of forum non conveniens as a
federal court would, but this possibility does not change
our result.” /d., at 6a.
REASONS FOR GRANTING THE WRIT
I. THE FIFTH CIRCUIT’S DECISION DIRECTLY
CONTRAVENES THIS COURT’S JURISPRUDENCE
ESTABLISHING THE COMPLETE PREEMPTION
OF THE FEDERAL ACT OF STATE DOCTRINE
A. The Federal Act of State Doctrine Raises a Pre-
emptive Federal Question That Authorizes Federal
Question Removal Jurisdiction Notwithstanding the
“Well Pleaded Complaint” Rule
In Benco Nacional de Cuba v. Sabbatino, 376 U.S. 398
(19641, this Court held that the federal common law of
foreign relations, in particular, the “act of state doctrine,”
completely preempts state law. According to this centuries
old doctrine, as defined in Underhill v. Hernandez, 168
U.S. 250, 252 (1897),
very sovereign state is bound to respect the inde-
pendence of every other sovereign state, and the
courts of one country will not sit in judgment on the
acts of the government of another done within its
own territory.
As this Court observed in Sabbatino, the act of state
doctrine has “ ‘constitutional’ underpinnings.” 376 U.S.
at 423. ““|T]he problems involved are uniquely federal in
nature,” and “the scope of the act of state doctrine must
be determined according to federal law.” 376 U.S. at 424
and 427 (emphasis added). Among the constitutional pro-
visions this Court cited in Sabbatino in support of this
doctrine and this country’s “desire to give matters of
international significance to the jurisdiction of federal
institutions” are U.S. Const., art I, § 8, els. 3 and 10 and
art. III, $2, reprinted in the appendix hereto at 61a.
12
As a matter of paramount federal international rela-
tions law, the act of state doctrine prohibits all courts in
the United States from questioning the validity of an act
of a foreign government undertaken within its own terri-
tory. The Fifth Circuit’s opinion in this case eviscerates
this Court’s complete “preemption” exception and subverts
federal international relations policy by allowing private
litigants to file suit in a state court to collaterally attack
a release executed in a foreign nation and officially ap-
proved and filed by the public act of a foreign govern-
mental agency in the exercise of its governmental au-
thority.
In holding that the “well pleaded complaint” rule
foreclosed petitioners from removing this case, the Fifth
Circuit further misapplied the law and reached a result
directly contrary to decisions of this Court and other
circuit courts. The allegations of a plaintiff’s compaint
do not govern when the controlling federal law raised as
a defense completely supplants state law and forms the
basis for removal judisdiction. E.g., Caterpillar Inc. v.
Williams, 482 U.S. 386 (1987); Van Camp v. AT&T In-
formation Systems, 963 F.2d 119 (6th Cir. 1992) ; Deford
v. Soo Line Railroad Co., 867 F.2d 1080, 1084 (8th Cir.),
cert. denied, 492 U.S. 927 (1989).
In Caterpillar, this Court found that even though a fed-
eral defense usually does not support removal, such is not
the case where ‘the preemptive force of a statute is so
‘extraordinary’ that it ‘converts an ordinary state common-
law complaint into one stating a federal claim for
purposes of the well pleaded complaint rule.’” Jd., 482
U.S. at 393, quoting Metropolitan Life Insurance Co. v.
Taylor, 481 U.S. 58, 65, 107 S.Ct. 1542, 95 L.Ed.2d 55
(1987).
In Van Camp, plaintiff’s complaint alleged sex and age
discrimination claims under state law and made no men-
tion of any federal claim. 963 F.2d at 120-21. AT&T
ee
13
removed, asserting that plaintiff’s purported state claims
were exclusively governed by ERISA. The Sixth Circuit
agreed that removal was proper: “When this exception to
the well-pleaded complaint rule—the ‘complete-preemption
doctrine’—applies, a complaint, though on its face set-
ting forth a claim under state law, is, for the purposes of
removal, treated as a federal claim because federal law
displaces any right of action under state law.” 963 F.2d
at 122. Similarly, in Deford, the Eighth Circuit found
that the “complete preemption” exception “prohibits a
plaintiff from defeating removal by failing to plead neces-
sary federal questions in a complaint and allows a defense
of federal preemption as a basis for removal.” 867 F.2d
at 1084.
Thus, jurisprudence from this Court and the federal cir-
cuits has firmly established that, where “complete pre-
emption” is involved, the federal court must look beyond
the allegations of the state court complaint. Plaintiffs
cannot hide behind their incomplete state court allega-
tions. Otherwise, the “complete preemption exception”
would be no exception at all, as plaintiffs could always
subvert important federal law and paramount federal
policy by “artfully” omitting crucial facts to disguise the
nature of their claims. See also Wright, Miller & Cooper,
FEDERAL PRACTICE AND PROCEDURE § 3722 at 276 (1985),
noting that “the plaintiff’s failure to make specific refer-
ence in the complaint to a source of federal law that
clearly is applicable will not prevent removal.”
Furthermore, the “complete preemption doctrine” is not
limited to Congressional statutory enactments. The “fed-
eral common law” likewise can completely preempt so as
to provide a basis for removal. In Illinois v. City of
Milwaukee, 406 U.S. 91 (1972), this Court held that the
“federal common law” regarding pollution of interstate
waterways completely preempted state law and supported
federal question jurisdiction under 28 U.S.C. § 1831. 406
U.S. at 99-100, 107 n.9. Citing to Illinois v. Milwaukee,
14
other federal courts have held that “federal common law”
is completely preemptive and provides a basis for federal
question jurisdiction so as to support removal. E.g., Mad-
sen v. Prudential Federal Savings & Loan-Ass’n, 635 F.2d
797, 802 (10th Cir. 1980), cert. denied, 451 U.S. 1018
(1981); Fisher v. White, 715 F.Supp. 37, 40 (E.D.N.Y.
1989).
This case falls squarely within the federal common law
of foreign relations and the act of state doctrine, which
are fields preempted by federal law. Accordingly, under
this Court’s jurisprudence, this case was removable to
federal court notwithstanding the “well pleaded com-
plaint” rule. This Court should grant a writ to reconcile
the Fifth Circuit’s decision that incorrectly remanded this
case contrary to the prevailing jurisprudence of this and
other federal courts. Unless reconciled, the Fifth Cir-
cuit’s opinion will lead to further distortions in an area
where federal courts must speak with one voice.
B. A Plaintiff Suing in State Court to Set Aside a
Valid Settlement Officially Approved by the Gov-
ernment of the Philippines in Its Own Territory
Cannot Evade Federal Question Jurisdiction and
the Act of State Doctrine by Artful Pleading
This Court has repeatedly recognized that “it is an
independent corollary of the well pleaded complaint rule
that a plaintiff may not defeat removal by omitting to
plead necessary federal] questions in a complaint... .”
Franchise Tax Board of the State of California v. Con-
struction Laborers Vacation Trust for Southern Califor-
nia, 463 U.S. 1, 22 (1983), Christianson v. Colt Indus-
tries, 486 U.S. 800, 809 n.8 (1988); Federated Depart-
ment Stores, Inc. v. Moitie, 452 U.S. 394, 397 n.2 (1981).
This is not a case involving purely private interests
where a plaintiff has simply filed a Jones Act claim in
state court under the “saving to suitors” clause and where
the defendant is first to mention a prior settlement by
15
way of defense to the claim. On the contrary, Mrs. Jaril-
las, a Philippine citizen, affirmatively asked the state
court in her petition to nullify her Philippine Government-
authorized and approved settlement. In so pleading, she
necessarily challenged her own government’s official pub-
lic act within its own sovereign territory and raised a
federal question of United States foreign relations law.
To invalidate that settlement, she necessarily must con-
front the federal act of state doctrine and cannot evade
that inescapable fact by neglecting to plead that she en-
tered into the settlement in the Philippines under the
auspices of the government of that sovereign nation. Had
respondent pleaded all the essential facts relevant to her
claim overtly challenging the prior settlement, including
that the agreement was confected in the Philippines with
the public approval of an officer of the Philippine Govern-
ment, her state court claim clearly would have invoked
the federal common law of foreign relations and the “act
of state’ doctrine—areas of federal law that completely
preempt the field.
The Fifth Circuit’s reliance on the “well pleaded com-
plaint rule” to shield plaintiff’s complaint from federal
jurisdiction under the federal act of state doctrine con-
dones plaintiff’s artful pleading and conflicts with this
Court’s jurisprudence and that of other federal courts
discussed above. This Court has mandated that federal
courts must look behind a plaintiff’s artful, incomplete
allegations and-consider the defendant’s jurisdictional
allegations that the plaintiff “conveniently” has failed to
allege. The state court pleadings in other “complete pre-
emption” cases, such as Van Camp and Deford, discussed
above, no more alleged federal claims than did the peti-
tion filed in state court in this case. Nevertheless, those
courts correctly looked behind plaintiffs’ state court alle-
gations to find federal jurisdiction based on defensive
allegations-of preemption. The district court in the in-
stant case did no more. As the district court in this case
16
correctly recognized, the foreign policy implications of
this case provide even a greater basis for refusing to allow
a plaintiff to artfully evade preemptive federal law and
removal jurisdiction.
If allowed to stand, the decision below authorizes liti-
gants to evade federal jurisdiction and important ques-
tions of public policy merely by refusing to plead the
factual details that invoke important federal interests.
This Court should grant a writ to reconcile the Fifth
Circuit’s erroneous decision with federal law as previously
established by this Court.
Il. THE FIFTH CIRCUIT'S DISMISSAL OF PETI-
TIONERS’ PARALLEL FEDERAL DECLARATORY
JUDGMENT ACTION CONTRAVENES ~ THIS
COURT’S MANDATE TO MAINTAIN SUCH AC-
TIONS WHERE STATE COURTS HAVE REFUSED
TO PROTECT A PARTY’S FEDERAL RIGHTS
The Fifth Circuit’s further error in dismissing peti-
tioners’ federal declaratory judgment action furnishes
equally compelling reasons for granting a writ in this
case. First, the appellate court dismissal undermines this
Court’s decisions in Brillhart v. Excess Insurance Co.,
316 U.S. 491 (1942), Provident Tradesmens Bank &
Trust Co. v. Patterson, 390 U.S. 102 (1968), and Will v.
Calvert Fire Insurance Co., 437 U.S. 655 (1978)—
jurisprudence vesting discretion in the district courts to
entertain declaratory judgment actions. Second, the ap-
pellate court has stripped petitioners of an essential mari-
time legal right by relegating them to a state forum that
defiantly refuses to recognize the fundamental maritime
doctrine of forum non conveniens. Third, the dismissal
destroys the uniformity of maritime law.
17
A. The Fifth Circuit’s Dismissal Usurps the District
Court’s Discretion and Contravenes the Standards
of Brillhart v. Excess Insurance Co. and Subsequent
Decisions of this Court
Petitioners filed a federal declaratory judgment action
based on federal question and admiralty jurisdiction,
seeking a declaration that the receipt and release ap-
proved by the Government of the Philippines was binding
and precluded respondent’s Jones Act and general mari-
time law action. The district court, after considering
whether it should maintain this action under the criteria
enunciated in Brillhart, maintained its jurisdiction to dis-
miss on grounds of forum non conveniens, noting that the
Philippines was the proper forum for this litigation
(Appendix, 13a-19a). The Fifth Circuit, after holding
that Mrs. Jarillas’ lawsuit should be remanded to state
court, held that the forum non conveniens dismissal should
be vacated and that the declaratory judgment should also
be dismissed because “it would be uneconomical as well as
vexatious for a federal court to proceed in a declaratory
judgment suit.” Appendix, 6a, quoting Brillhart, 316
U.S. at 495. In so holding, the Fifth Circuit misapplied
Brillhart, Will, and Patterson by relegating these defend-
ants to a state forum that has conclusively refused to
apply the maritime doctrine of forwm non conveniens.
By stripping petitioners of their fundamental federal
maritime rights, the Fifth Circuit has both misapplied
Brillhart, as well as a long line of Supreme Court juris-
prudence recognizing that forwm non conveniens is a
characteristic feature of maritime law that is available
to all litigants in all cases, whether in state or federal
court.
The Fifth Circuit correctly noted that Brillhart or-
dinarily requires a federal court to dismiss a declaratory
judgment action where it seeks to adjudicate matters that
are already being litigated in a parallel state court pro-
ceeding. Nevertheless, this Court also held that a dismis-
18
sal is not proper in every case. Brillhart instructs federal
courts to refuse jurisdiction over declaratory judgment
actions only where the questions at issue in the case can
“better be settled” in the state court proceeding. On the
other hand, where the state proceeding is deficient in
resolving the claims, or where the state court cannot or
will not protect a litigant’s federal rights, the federal
declaratory judgment action should not be dismissed:
Where a district court is presented with a claim such
as was made here, it should ascertain whether the
questions in controversy between the parties to the
federal suit, and which are not foreclosed under the
applicable substantive law, can better be settled in
the proceeding pending in the state court. This may
entail inquiry into the scope of the pending state
court proceeding and the nature of defenses open
there. The federal court may have to consider
whether the claims of all parties in interest can satis-
factorily be adjudicated in that proceeding, whether
necessary parties have been joined, whether such
parties are amenable to process in that proceeding,
ete.
316 U.S. at 495 (emphasis supplied).
In Brillhart, this Court ordered remand of the dismissal
of the declaratory judgment action to the district court,
because the district court had failed to consider whether
defenses raised in that proceeding could be considered in
the state forum. 316 U.S. at 495-96. Significantly, this
Court vacated the circuit court’s reversal of the district
court’s original dismissal of the declaratory judgment ac-
tion, stating that this determination was within the prov-
ince of the district court, not the court of appeals. Since
Brillhart, this Court has again held that whether a
declaratory judgment action should be maintained is sub-
ject to the district court’s discretion, which should not
ordinarily be disturbed on appeal. See Will v. Calvert.
Fire Insurance Co., 437 U.S. at 662-64, and Provident
19
Tradesmens Bank & Trust Co. v. Patterson, 390 U.S. at
126-27.
The Fifth Circuit’s dismissal of the declaratory judg-
ment action in this case directly contravenes Brillhart,
Will, and Patterson. First, the circuit court summarily
ordered dismissal of the declaratory judgment action with-
out considering, as Brillhart demands, whether Aquafaith
will receive a fair adjudication of its federal maritime
defenses in the state court litigation. Contrary to the
Fifth Circuit’s finding,? the state court’s potential treat-
ment of Aquafaith’s federal maritime forum non. con-
veniens defense is not insignificant, but is, as discussed
below, a dispositive Brillhart factor that requires the
court to maintain jurisdiction over the declaratory judg-
ment action; Louisiana has statutorily and jurispruden-
tially barred any and all consideration of this fundamental
maritime doctrine. Second, in Will v. Calvert Fire In-
surance Co., cited above, this Court held that the Brill-
hart analysis is a question for the district court, whose
decision should not be reversed absent an abuse of dis-
cretion. This district court in this case has exercised its
discretion in maintaining jurisdiction over this declara-
tory judgment action by expressly considering, in light of
Brillhart, that the state court would deprive petitioners
of this fundamental maritime right (Appendix, 16a-18a).
Given the unavailability of the federal maritime forum
non conveniens doctrine in state court, the appellate court
violated Brillhart and its progeny by substituting its own
arbitrary analysis for the reasoned exercise of discretion
by the district court.
The Fifth Circuit’s summary dismissal without analysis
substantially undermines the Brillhart rule. It abridges
the discretion that this Court has vested in the district
* The panel held: “The state court might not apply the same
doctrine of forum non conveniens as a federal court would, but this
possibility does not change our result.” (Appendix, 6a).
20
courts and authorizes appellate courts to substitute their
own ad hoc analysis, notwithstanding the well-reasoned
basis of a district court’s exercise of discretion. It au-
thorizes federal courts to ignore a state’s refusal to pro-
tect a litigant’s federal rights, a factor that Brillhart
expressly commands that the federal trial and appellate
courts consider. This Court should grant a writ to recon-
cile the decision below with Brillhart and its progeny.
B. Petitioners Have Been Stripped of a Fundamental
Defense by Louisiana’s Refusal to Recognize the
Doctrine of Forum Non Conveniens in Maritime
Cases
Furthermore, Brillhart recognizes the propriety of a
federal declaratory judgment action where a defendant
will lose important federal defenses if the, party is rele-
gated to state court. Brillhart, 316 U.S. at 495. By dis-
missing petitioners’ federal declaratory judgment action,
the Fifth Circuit has stripped petitioners of their right
to assert the fundamental maritime doctrine of forum
non conveniens.
In maritime actions between foreigners, this Court has
long recognized the discretion of admiralty courts to re-
fuse to exercise jurisdiction where the case has little or
no substantive contact with the United States and where
the litigation could be conducted more appropriately in a
different court. The Belgenland, 114 U.S. 355 (1885);
Canada Malting Co. v. Paterson Co., 285 U.S. 413 (1932).
In later cases, this Court applied the doctrine to actions at
law and formulated a set of public and private interest
factors to be considered in dismissing a case filed in the
United States in favor of a proceeding in a foreign forum.
Gulf Oil Corp. v. Gilbert, 330 U.S. 501 (1947); Piper
Aircraft Co. v. Reyno, 454 U.S. 235 (1981). “[Dlis-
missal will ordinarily be appropriate where trial in the
plaintiff's chosen forum imposes a -heavy burden on the
defendant or the court, and where the plaintiff is unable
21
to offer any specific reasons of convenience supporting
his choice.” Piper, 454 U.S. at 249. The doctrine “is
designed in part to help courts avoid conducting complex
exercises in comparative law.” 464 U.S. at 251.
Nonetheless, despite the preeminence of forum non
conveniens as a characteristic feature of maritime law,
Louisiana has defiantly refused to apply it in maritime
eases. Article 123(C) of the La. Code of Civ. Proc., repro-
duced in the appendix hereto at 65a, expressly denies
the defense of forum non conveniens to maritime defend-
ants. Furthermore, the Louisiana Supreme Court has held
that the statute clearly means “that the doctrine of forum
non conveniens is specifically made unavailable in a Jones
Act or maritime case” and that “application of Louisi-
ana’s forum non conveniens rule is not preempted by fed-
eral admiralty law.” Miller v American Dredging Co.,
595 So.2d 615, 617, 619 (La. 1992) (emphasis added).
The result is that maritime defendants in Louisiana state
courts are deprived of their long established federal rights
of forum non conveniens, even though the dispute has a
totally foreign nexus, foreign law governs the controversy,
and all the public and private interest factors favor dis-
missal.*
Brillhart and its progeny teach that a federal declara-
tory judgment action should be maintained—or at the
3In this case, the district court specifically found that the de-
cedent’s POEA contract, which was executed in the Philippines,
“expressly provided that the POEA and the Philippine Courts of
Justice have exclusive jurisdiction over all disputes arising out of
the employment relationship, which contract was filed with and
approved by the POEA.” (Appendix, 14a). Exclusive forum selec-
tion clauses are valid and enforceable, absent a strong showing that
they are fundamentally unfair or unreasonable under the circum-
stances. See Bremen v. Zapata Off-Shore Co., 407 U.S. 1 (1972);
Carnival Cruise Lines v. Shute, 499 U.S. —, 111 S.Ct. 1522 (1991).
Here, respondent has no proof that litigating her claim in her home
country of the Philippines under the forum selection clause of a
standard, government approved contract will be unfair, unreason-
able, or inconvenient.
22
very least, that the federal district court is the proper
court to determine whether the action should be main-
tained—where a fundamental defense under the applica-
ble substantive law is unavailable and cannot be con-
sidered in state court. The district court in this case
made the Brillhart determination to maintain its declar-
atory judgment jurisdiction in light of the unavailability
of this fundamental maritime right in Louisiana courts.
The Fifth Circuit in this case has usurped the district
court’s prerogative and has provided the basis for other
courts to follow suit.
C. The Fifth Circuit’s Order Remanding This Maritime
Cause of Action to the Court of A State That Stat-
utorily Denies Application of the Doctrine of Forum
_ Non Conveniens Destroys the Uniformity of Federal
Maritime Law
Furthermore, the Fifth Circuit’s decision violates the
uniformity of federal maritime law by relegating these
maritime litigants to a state forum that statutorily denies
forum non conventens dismissals in maritime cases.
When a Jones Act or maritime claim is filed in state
court, Article III, § 2 of the United States Constitution
mandates that federal maritime law, not state law, gov-
erns the course of the lawsuit in the state forum. Garrett
v. Moore-McCormack Co., Inc., 317 U.S. 289 (1942);
Kermarec v. Compagnie Generale Transatlantique, 358
U.S. 625, 628 (1959); Pope & Talbot, Inc. v. Hawn, 346
U.S. 406, 409 (1953); Panama Ratlroad Co. v. Johnson,
264 U.S. 375, 385-89 (1924). As this Court extensively
explained in Johnson, the U.S. Constitution vests the fed-
eral government with the exclusive power regarding fed-
eral maritime law so as to guarantee its uniform applica-
tion in its “substantive as well as its procedural features.”
264 U.S. at 385-89; see also Hawn, 346 U.S. at 409.
Furthermore, the Supremacy Clause, U.S. Const., art VI,
cl. 2, guarantees that the maritime law, like all other
federal law, “shall be the supreme law of the land.”
23
The doctrine of forum non conveniens is a fundamental
feature of federal maritime law; it has been recognized
in the landmark cases of this Court cited above and re-
peatedly applied in modern maritime cases. See [kospen-
takis v. Thalassic Steamship Agency, 915 F.2d 176 (5th
Cir. 1990); Maria Victoria Naviera, S.A. v. Cementos
Del Valle, S.A., 759 F.2d 1027 (2d Cir. 1985); Zipfel v.
Haliburton Co., 832 F.2d 1477 (9th Cir. 1987), cer’.
denied, 486 U.S. 1054 (1988) ; Singalas v. Lido Maritime,
Inc., 776 F.2d 1512 (11th Cir. 1985). Federal jurispru-
dence recognizes this doctrine as an integral part of the
maritime law and as the supreme law of the land in
maritime cases. See Ikospentakis v. Thalassic Steamship
Agency, cited above; Camejo v. Ocean Drilling & Explora-
tion, 838 F.2d 1374 (5th Cir. 1988). See also Chick Kam
Choo v. Exxon, 486 U.S. 140 (1988) (stating that the
Fifth Circuit’s view of the “preemptive force of federal
-aaritime forum non conveniens” may in fact be a correct
statement of the law). Federal and state courts must con-
sistently apply forwm non conveniens to maintain uni-
formity in federal maritime law.
As noted above, Louisiana statutory law, as definitively
interpreted by the Louisiana Supreme Court, denies appli-
cation of forum non conveniens in maritime cases. This
result contravenes the federal jurisprudence cited above,
which mandates all courts, federal and state alike, to
apply the fundamental doctrine of forwm non conveniens.
By dismissing petitioners’ declaratory judgment and rele-
gating them to a state forum that defiantly refuses to
recognize this doctrine, the Fifth Circuit has destroyed
the uniformity of maritime law.
Furthermore, if left uncorrected, the Fifth Circuit’s
decision invites all foreign maritime litigants to avoid
the uniform application of federal maritime law, as well
as the law of their own sovereign governments, by filing
their maritime actions in the courts of a state like Louisi-
ana that refuses tc abide by this fundamental maritime
24
doctrine. Louisiana, and other states like it, will become
a world forum for unrelated actions with no connexity
to the United States, and maritime litigants will be denied
an essential right that has been a characteristic feature
of federal maritime law since its inception. As this Court
has recognized in Piper, if litigants are allowed to shop
for favorable law without regard to the doctrine of forum
non conveniens,
American courts, which are already extremely attrac-
‘tive to foreign plaintiffs, would become even more
attractive. The flow of litigation into the United
States would increase and further congest already
crowded courts.
454 U.S. at 252.
In short, allowing the decision in this case to stand will
violate the fundamental federal maritime policy behind
the forum non conveniens doctrine: Actions with no rela-
tion to the U.S. should be heard conveniently by courts of
the nation with the most interest. Unless this Court in-
tercedes, the decision below will create a profound distor-
tion in the established system of resolving maritime
disputes, will encourage conflicts in maritime law, and
will work a grave injustice on litigants and courts world-
wide.
This Court should grant a writ to reconcile the Fifth
Circuit’s decision in this case with Brillhart, to rectify the
Fifth Circuit’s error that deprives petitioners of a funda-
mental maritime doctrine if their declaratory judgment
action is dismissed, and to confront Louisiana’s refusal to
recognize the supremacy and uniformity of federal mari-
time law.
25
CONCLUSION
The Fifth Circuit’s decision in this case contravenes
this Court’s jurisprudence and settled federal law in the
areas of foreign relations and the act of state doctrine.
removal jurisdiction, declaratory judgments, and the mari-
time doctrine of forum non conveniens. For the reasons
set forth above, petitioners submit that the Court should
grant a writ of certiorari to address these important
issues of international concern.
Respectfully submitted,
ROBERT B. DEANE
Counsel of Record
KENNETH J. SERVAY
DOUGLAS L. GRUNDMEYER
CHAFFE, MCCALL, PHILLIPS,
TOLER & SARPY
2300 Energy Centre
1100 Poydras Street
New Orleans, LA 70163-2300
(504) 585-7000
Attorneys for Petitioners,
Aquafaith Shipping, Ltd. and
September 14, 1992 Seven Seas Maritime, Ltd.
APPENDIX
la
APPENDIX
UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 91-3346
AQUAFAITH SHIPPING, LTD., and
SEVEN SEAS MARITIME, LTD.,
Plaintiffs-A ppellees,
versus
EUFEMIA R. JARILLAS,
Individually, as personal representative of the estate of
LEOPOLDO L. JARILLAS, ETC.,
Defendant-A ppellant.
Appeals from the United States District Court
for the Eastern District of Louisiana
(June 24, 1992)
Before POLITZ, Chief Judge, WILLIAMS and DUHE.,
Circuit Judges.
DUHE, Circuit Judge:
This case requires us to decide whether the petition
filed in state court contains a removable claim or cause
of action separate and independent from a Jones Act
claim. We hold that the petition states no removable
claim or cause of action and therefore reverse the judg-
2a
ment of the district court. We also hold that the district
court should have dismissed the declaratory judgment
action because the federal action is identical to the previ-
ously filed state court case.
I.
This litigation started when Eufemia R. Jarillas, a
Philippine domiciliary, filed a Petition for Damages and
for Writ of Attachment in Louisiana state court. She is
suing Aquafaith Shipping, Ltd. and Seven Seas Mari-
time, Ltd. (Cypriot and British corporations, respectively )
under the Jones Act' and the general maritime law of
the United States, alleging that her husband was killed
while employed as a seaman on the M/V Alfa, a vessel
owned and operated by those corporations. She also claims
that Aquafaith and Seven Seas prevailed upon her,
through unlawful overreaching, to settle the claim and
release them from liability. She asks for punitive dam-
ages to deter them from such conduct in the future. The
suit is brought by Mrs. Jarillas individually, as repre-
sentative of her husband’s estate, and as natural tutrix
of the couple’s minor children.
In response to her petition, Aquafaith and Seven Seas
invoked the jurisdiction of the federal district court.
They filed a petition for removal and a complaint for
declaratory relief. Mrs. Jarillas moved to remand her
action to state court and she asked that the district court
dismiss the declaratory judgment action. The court held
that the release claim is separate and independent from
the Jones Act claim, that the release claim is within the
jurisdiction of the federal courts because it is governed
by the federal common law of foreign relations, and that
the whole matter could therefore be removed under 28
U.S.C. § 1441(c). The court denied Mrs. Jarillas’s mo-
tions to remand and dismiss. It then applied the doctrine
146 U.S.C. § 688.
| On
8a
of forum non conveniens and dismissed the entire case in
favor of a Philippine forum. Mrs. Jarillas appeals.
IT.
We first address the issue of removability. The Jones
Act allows a plaintiff to bring her action in state court
without fear of removal to federal court. 46 U.S.C. § 688:
28 U.S.C. § 1445(a). Aquafaith and Seven Seas argue
that Mrs. Jarillas’s release claim is “separate and in-
dependent” from her Jones Act claim, that the receipt
and release claim is within the jurisdiction conferred by
28 U.S.C. § 1331 (federal question jurisdiction), and that
the entire case, including the Jones Act claim, may there-
fore be removed under 28 U.S.C. § 1441(¢c). Mrs. Jarillas
controverts each of these three contentions.
We need not resolve any “potential conflict between
$ 1445(a) and § 1441(c).” In re Dutile, 985 F.2d 61,
62 (5th Cir. 1991). The removal statute requires that
the separate and independent claim be within our federal
question jurisdiction. Regardless of whether Mrs. Jaril-
las’s receipt and release claim is separate and independent
from her Jones Act claim (a question on which we
intimate no opinion), the release claim is not subject to
federal question jurisdiction, as far as can be discerned
from her state court petition.
Aquafaith and Seven Seas base their contrary conten-
tion on the following reasoning. The release signed by
Mrs. Jarillas was filed with the Philippine Overseas Em-
ployment Administration, which among other things is
charged with helping seamen and their families settle
claims. Therefore, Aquafaith and Seven Seas conclude,
this case will require a court “to pass on the validity of
official acts of a foreign sovereign taken within its own
territory.” Orig. Br. of Appellees at 23. The court would
find itself embroiled in the area of international rela-
tions, which is exclusively a matter of federal law. The
federal courts have fashioned a federal common law to
4a
dispose of cases in this area. See generally Banco Nacional
de Cuba v. Sabbatino, 376 U.S. 398 (1964) ; Texas Indus.
v. Radcliff Materials, Inc., 451 U.S. 6380 (1981) ; Republic
of Philippines v. Marcos, 806 F.2d 344 (2d Cir. 1986).
Aquafaith and Seven Seas argue that nothing less than
the act-of-state doctrine is involved in this case.
Defense counsel’s erudite arguments about the federal
common law of foreign relations are foreclosed by the
familiar well-pleaded complaint rule. For purposes of
jurisdiction, we look only to the properly pleaded com-
plaint or petition. E.g., Franchise Tax Bd. v. Construc-
tion Laborers Vacation Trust, 463 U.S. 1, 9-10 (1983)
(citing Taylor v. Anderson, 284 U.S. 74, 75-76 (1914) );
Addison v. Gulf Coast Contracting Servs., Inc., 744 F.2d
494, 499 (5th Cir. 1984). The court may have to examine
pleadings filed by the defendant in order to determine
whether the plaintiff’s complaint is in fact “well pleaded.”
Thus, when a court performs its duty to verify that it
has jurisdiction, it may be required to survey the entire
record, including the defendant’s pleadings, and base its
ruling on the complaint, on undisputed facts, and on its
resolution of disputed facts. See Williamson v. Tucker,
645 F.2d 404, 412-13 (5th Cir. May 1981), cert. denied,
454 U.S. 897 (1981); Calvert v. Sharp, 748 F.2d 861,
862-63 (4th Cir. 1984), cert. denied, 471 U.S. 11382
(1985), overruled on other grounds by West v. Atkins,
487 U.S. 42 (1988). See generally Fed. R. Civ. P. 12
(b) (1). The purpose of this careful survey, however,
is to shed light on the plaintiff’s pleadings. The court’s
focus is on the plaintiff’s pleadings, not the defendant’s.
A federal court is not confined to the letter of the
petition. The court may find that the plaintiff’s claims
arise under federal law, even though the plaintiff has not
characterized them as federal claims. Thus, if the petition
purports to invoke state law but would actually be gov-
erned by federal law because of the complete preemption
of state law, federal jurisdiction will attach. Avco Corp.
= =
5a
v. Aero Lodge No. 735, Int'l Ass’n of Machinists & Aero-
space Workers, 390 U.S. 557 (1968). Still, the court
draws this conclusion from a close reading of the plain-
tiff’s pleadings, not from defenses raised by the defend-
ant. “A defense that raises a federal question is inade-
quate to confer federal jurisdiction.” Merrell Dow
Pharmaceuticals Inc. v. Thompson, 478 U.S. 804, 808
(1986).
Seven Seas and Aquafaith have not cited any exceptions
to the well-pleaded complaint rule, and our research has
uncovered only one. Federal officers may “overcome the
‘wel-pleaded complaint’ rule which would otherwise pre-
clude removal even if a federal defense were alleged.”
Mesa v. California, 489 U.S. 121, 136-37 (1989). This
exception is provided by a specific jurisdictional statute.
Id. at 136 (construing 28 U.S.C. § 1442(a)). We have
been unable to find any judge-made exceptions, nor are
we sure that judges would have the power to create one.
One district court in New York referred to the Avco
holding as an exception, but that holding is not truly
an exception. Avco requires a court to examine the com-
plaint. The court may reconstruct the plaintiff’s legal
theories, but the court looks only to the pleadings of the
plaintiff.
No matter how closely we scrutinize Mrs. Jarillas’s
petition, we can find no hint of the federal common law
of foreign relations. The complaint does allege that Mrs.
Jarillas maintains her domicile in the Philippines, that
corporations organized in foreign countries are involved,
and that the collision which killed Mr. Jarillas occurred
somewhere between New Orleans and the erstwhile Soviet
Union. These allegations do not lift this case from the
usual scaly context of maritime suits into the rarefied
realm of foreign relations. We learn of the involvement
2 International Ass’n of Machinists & Aerospace Workers, Local
Lodge No. 967 v. General Elec. Co., 713 F. Supp. 547, 551 (N.D.N.Y.
1989).
6a
of the POEA only from the pleadings of Aquafaith and
Seven Seas. Without the information that we discover
from their pleadings, the act-of-state doctrine and federal
common law are not implicated.*. We hold that Mrs.
Jarillas’s release claim is not subject to federal question
jurisdiction and that her case should have been remanded
to state court.
ITI.
Having concluded that Mrs. Jarillas’s case should have
been remanded, we also hold that the declaratory judg-
ment action should be dismissed. In the words of Mr.
Justice Frankfurter, “it would be uneconomical as well
as vexatious for a federal court to proceed in a declara-
tory judgment suit” when the entire controversy is already
being litigated in a state court that is capable of resolving
the dispute. Brillhart v. Excess Ins. Co., 316 U.S. 491,
495 (1942). “Gratuitous interference with the orderly
and comprehensive disposition of a state court litigation
should be avoided.” Jd. While we do not rule in favor
of dismissing the federal action solely because the state
court suit was filed first, prosecution of the federal action
would be useless when the state court is adjudicating the
same controversy, and dismissal is therefore appropriate.
See Employers’ Liab. Assurance Corp. v. Mitchell, 211
F.2d 441, 448 (5th Cir.), cert. denied, 347 U.S. 1014
(1954). The state court might not apply the same doc-
trine of forum non conveniens as a federal court would,
but this possibility does not change our result.
IV.
For the foregoing reasons, the judgment of the district
court is reversed. Both cases are remanded to the United
States District Court for the Eastern District of Louisi-
3 We express no opinion on whether the federal common law would
be implicated if Mrs. Jarillas’s pleading had contained all of the
allegations included in those of Aquafaith and Seven Seas.
;
Ta
ana, which should remand Mrs. Jarillas’s suit for dam-
ages to the 29th Judicial District Court, Parish of St.
Charles, Louisiana. The declaratory judgment action of
Aquafaith and Seven Seas should be dismissed.
REVERSED and REMANDED WITH INSTRUC-
TIONS.
8a
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
Civil Action No. 89-4036
SECTION ‘“‘A”’
EUFEMIA R. JARRILLAS ETC.
Versus
AQUAFAITH SHIPPING LTD. et al.
JUDGMENT
(Filed Mar. 29, 1991;
Date of Entry Mar. 29, 1991)
In accordance with the Court’s Order entered herein
on March 14, 1991, and upon the Court noting that Aqua-
faith Shipping LTD. and Seven Seas Maritime LTD. have
complied with the Court’s directive contained in said
Order,
IT IS ORDERED, ADJUDGED, AND DECREED,
that the claims herein be dismissed with prejudice for
forum non conveniens reserving unto Eufemia R. Jarillas
petitioning the Court for reopening this matter in the
event that the conditions for dismissal are not complied
with.
New Orleans, Louisiana, this 29th day of March, 1991.
/s/ Loretta G. Whyte
LORETTA G.. WHYTE
Clerk
APPROVED AS TO FORM:
‘s/ Charles Schwartz, Jr.
United States District Judge
ee
9a
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
Civil Action No. 89-4037
SECTION “A”
EUFEMIA R. JARRILLAS etc.
Versus
AQUAFAITH SHIPPING LTD. et al.
JUDGMENT
Filed Mar. 29, 1991;
Date of Entry Mar. 29, 1991)
In accordance with the Court’s Order entered herein
on March 14, 1991, and upon the Court noting that Aqua-
faith Shipping LTD. and Seven Seas Maritime LTD. have
complied with the Court’s directive contained in said
Order,
IT IS ORDERED, ADJUDGED, AND DECREED,
that the claims herein be dismissed with prejudice for
forum non conveniens reserving unto Eufemia R. Jarillas
petitioning the Court for reopening this matter in the
event that the conditions for dismissal are not complied
with.
New Orleans, Louisiana, this 29th day of March, 1991.
/s/ Loretta G. Whyte
LORETTA G. WHYTE
Clerk
APPROVED AS TO FoRM:
s Charles Schwartz, Jr.
United States District Judge
10a
MINUTE ENTRY
SEPTEMBER 183, 1990
SCHWARTZ, J.
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
Civil Action No. 89-4036
SECTION ‘‘A”’
AQUAFAITH SHIPPING, LTD. AND
SEVEN SEAS MARITIME, LTD.
Versus
EUFEMIA R. JARILLAS
CONSOLIDATED WITH
Civil Action No. 89-4037
SECTION “‘A”’
EUFEMIA R. JARILLAS
Versus
AQUAFAITH SHIPPING, LTD. AND
SEVEN SEAS MARITIME, LTD.
(Filed Sep. 13, 1990;
Date of Entry Sep. 14, 1990)
This matter is before the Court on the motions of plain-
tiff ' to remand and to dismiss. The motions, set for hear-
ing on September 12, 1990, was taken on briefs without
oral argument. For the reasons set forth below, the
motions are DENIED.
1 For the sake of clarity, Eufemia R. Jarillas will be referred to
as “plaintiff,” and Aquafaith Shipping, Ltd. and Seven Seas Mari-
time, Ltd. will be referred to as “defendants.”
ila
On November 16, 1988, the M/V ALFA, owned and
operated by the defendants, was involved in a collision
in the Baltic Sea. Plaintiff’s decedent was reported as
missing, and is presumed drowned. The decedent, Leo-
poldo Jarillas, was a Philippine resident. On Jan. 9,
1989, plaintiff entered into a settlement whereby she
signed a Receipt and Release in which she released all
claims against the defendants arising out of Leopoldo
Jarillas’ death and received 220,000 Philippine pesos.
Plaintiff now claims this agreement was signed under
duress and coercion.
The Philippine Overseas Employment Agency (“POEA”)
is a Philippine government agency. Part of its function
is the protection of overseas workers and the resolutions
of disputes between an overseas worker and his employer.
Defendants claim that the settlement was approved by
the POEA, and that under Philippine law, it is a binding
settlement.
Plaintiff claims, however, that the agreement is stamped
“received” not “approved” by the POEA, and that the
agreement was merely filed with that agency after plain-
tiff signed it. Since this procedure is not required by the
POEA, meyely filing such documents, does not make
them binding under Philippine law.
This case was originally filed on August 30, 1989 in
state court. At that time, plaintiff filed a petition for
damages and a writ of attachment and alleged a Jones
Act claim, a claim of unseaworthiness, and that the re-
lease was null and void because it was signed under
duress and coercion. On Sept. 11, 1989, defendants filed
a removal petition and a complaint for declaratory relief
in this Court. Plaintiffs have filed a motion to dismiss
the complaint for declaratory judgment and a mofion for
remand.
First, plaintiff's Jones Act claim and her claim to void
the release are clearly separate and independent claims.
Although the claim regarding the validity of the settle-
12a
ment agreement is related to the decedent’s death, it deals
with a separate wrong and seeks to enforce a separate
right. See Hollis v. Halter Marine, Inc., 595 F. Supp.
827, 829 (E.D. La. 1984). The claims arose at different
times, out of different events, and involve different actors.
Moreover, the recovery plaintiff seeks in each claim is
different. Although a Jones Act claim by itself it not
removable, it is removable if joined with a separate and
independent claim that would be removable if sued upon
alone. 28 U.S.C. § 1441(c). Accordingly, removal is
proper.
Plaintiff’s second claim involves a determination of the
validity of the release agreement, and ultimately a deci-
sion must be made regarding what forum and what law
must be used to make that decision. Article 227 of the
Philippine Labor Code provides:
A compromise settlement ... voluntarily agreed upon
by the parties with the assistance of the Bureau or
the regional office of the Department of Labor, shall
be final and binding upon the parties. The National
Labor Relations Commission or any court shall not
assume jurisdiction over issues involved therein ex-
cept in case of non-compliance thereof or if there is
prima facie evidence that the settlement was ob-
tained through fraud, misrepresentation, or coercion.
Furthermore, the deposition of Jose S. Brillantes, the
Labor Attache for the Philippine Embassy, and the state-
ment of Maria Lourdes Cortez, a Senior Overseas Em-
ployment Officer for the POEA, indicate that the release
would be considered approved by the POEA, and there-
fore binding. As defendants point out, plaintiff is, in
essence, requesting a United States court to review the
rules and regulations of a foreign government, and make
a determination of their validity and application in this
situation. Such a decision is properly made in a federal,
rather than a state court. Banco Nacional de Cuba v.
Sabbatino, 376 U.S. 398 (1964).
13a
MINUTE ENTRY
March 11, 1991
SCHWATZ, J.
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
Civil Action No. 89-4036
C/W 89-4037
SECTION “‘A”’
AQUAFAITH SHIPPING, LTD AND
SEVEN SEAS MARITIME, LTD.
Versus
EUFEMIA R. JARILLAS,
IndividuaHy, ete.
(Filed Mar. 14, 1991;
Date of Entry Mar. 14, 1991)
This matter is before the Court on the Motion of Aqua-
faith Shipping Ltd. and Seven Seas Maritime Ltd. for
Summary Judgment or, alternatively, Motion for Forum
Non Conveniens Dismissal in the above referenced mat-
ters. Docket No. 89-4036 is the movants’ Complaint for
Declaratory Relief, which action was consolidated with
Docket No. 89-4037, the Petition for Damages of Eufemia
R. Jarillas which the movants herein removed from the
state court on September 11, 1989. The motions, set for
hearing February 27, 1991, were taken under submission
on briefs without oral argument at the request of the
parties.
This consolidated matter arises from the death of sea-
man Leopoldo Jarillas. The decedent was a citizen and
resident of the Philippines, as are his wife and children,
l4a
and was employed aboard the M/V ALFA, a Cyprus flag
vessel, pursuant to a Philippine Overseas Employment
Administration (“POEA’’)! contract which he executed
in the Philippines on July 7, 1988. This contract ex-
pressly provided that the POEA and the Philippine Courts
of Justice have exclusive jurisdiction over all disputes
arising out of the employment relationship, which con-
tract was filed with and approved by the POEA. Aqua-
faith Shipping Ltd. is a Cypriot corporation and owner
of the M’V ALFA. Seven Seas Maritime Ltd. is a British
corporation and the vessel operator’s London agent. On
November 16, 1988, the M/V ALFA was involved in a
collision in the Baltic Sea. In the aftermath it was
discovered that Leopoldo Jarillas was missing; his body
was never found and he was presumed drowned. In
January 1989, defendants’ representative approached
Mrs. Jarillas.in the Philippines and advised her that they
were prepared to settle any claims for the death of her
husband for an amount greater than the compensation
benefits required under POEA contract and the POEA
rules and regulations. On January 9, 1989, Mrs. Jarillas,
in the presence of her uncle, an attorney representing
the defendants, and a senior officer of the POEA entered
into a settlement for an amount of compensation 34%
greater than that required under the POEA contract.
As part of the settlement, Mrs. Jarillas, individually
and as representative for her minor children, executed a
release to the defendants from any further liability aris-
ing from the death of her husband, which release was
1The POEA is a Phillipine government agency charged with
overseeing the employment of Filipinos, including seamen, by for-
eign entities. The POEA establishes the compensation owed by an
employer for the injury or death of a Filipino seaman, and is charges
with advising and protecting the interests of their empolyees or
their survivors. The POEA also reviews and approves the settle-
ment of claims made by Filipino employees or their survivors against
their employers.
EE Se Te
15a
witnessed by and Notarized additional personnel at the
POEA. On August 30, 1989, Mrs. Jarillas, individually,
as representative of her deceased husband’s estate, and
as Natural Tutrix of their minor children, filed a Peti-
tion for Damages and Writ of Attachment against the
defendants and the M/ ALFA in the 29th Judicial Dis-
trict Court, Parish of St. Charles, State of Louisiana,
asserting Jones Act negligence and unseaworthiness
claims arising from the death of her husband. Specifically
averred in this Petition is Mrs. Jarillas’ claim that her
exccution of the January 9, 1989 settlement and release
was obtained under duress, deception and/or coercion.
Defendants then filed their Complaint for Declaratory
Relief under 28 U.S.C. § 2201 (No. 89-3046) and re-
moved the state court action to this Court (No. 89-3407)
under 28 U.S.C. $$ 1331 and 1333 on September 11, 1989.
Defendants move now for summary judgment on the
effect of the settlement and release of January 9, 1989,
or alternatively for forum non conveniens dismissal of
this matter.
The primary issue in this matter is the validity of
the settlement and release of January 9, 1989, and while
neither of the parties dispute this fact—neither of the
parties has submitted a memorandum of Philippine law
relative to duress, undue influence, coercion, unequal bar-
gaining power, and the avoidance of contracts generally.
Following review of the parties’ submissions, there is no
question but that Philippine law governs that issue herein
and, further, that this entire matter does not “belong” in
this forum. See Quintero v. Klaveness Ship Lines, 914
F.2d 717, 722-23, reh. and reh. en bane denied, 920 F.2d
931 (5th Cir. 1990) (application of the Lauritzen-Rhodi-
tis test places most significant weight on place of employ-
ment contract, domicile of worker, and provision for
choice of law in contract, to determine law to be applied
when other factors absent). Plaintiff, however, challenges
the defendants’ ability to raise the forum non conveniens
16a
defense as an alternative at this time when defendants
not only removed the plaintiff’s state court Petition to this
Court over a year and a half ago but filed a Complaint of
their own under the Declaratory Judgment Act.
The Declaratory Judgment Act, 28 U.S.C. § 2201, con-
fers no jurisdiction but is a procedural device designed
to provide a new remedy in the federal court arsenal.
Mission Insurance Company v. Puritan Fashions Corpe-
ration, 706 F.2d 599, 601 (5th Cir. 1983), citing Aetna
Life Insurance Company of Hartford, Conn v. Haworth,
300 U.S. 227, 239-240, 57 S. Ct. 461, 463-464 (1937). As
was stated by the Fifth Circuit in Dresser Industries,
Inc., v. Insurance Company of North America, 358 F.
Supp. 327, 330 (N.D. Tex.), aff'd, 475 F.2d 1402 (5th
Cir. 1973), the Declaratory Judgment Act “gives the
Court a choice, not a command.” Mission Insurance Com-
pany, supra, at 601. The district court is not required to
grant declaratory judgment relief, and it is a matter for
the district court’s sound discretion whether to decide a
declaratory judgment action. /d., citing Brillhart v. Ev-
cess Insurance Company of America, 316 U.S. 491, 62 S.
Ct. 1163 (1942). In the instant case, defendants filed
their Complaint for Declaratory Relief in order to ensure
the removal of plaintiff’s Petition from the state court.
Louisiana state courts have refused to recognize the ap-
plication of federal forum non conveniens law in maritime
cases, Markzannes v. Bermuda Star Lines, Ine., 545 So.2d
537 (La. 1989), cert. denied, US. ——, 110 S. Ct.
837 (1990), even though implored to do so by the Fifth
Circuit. Jkopentakis v. Thalassic Steamship Agency, 915
F.2d 176 (5th Cir. 1990). To estopp defendants from as-
serting the federal forum non conveniens defense through
the rationale that they have themselves chosen this forum
would “blink at reality” and turn these foreign litigants
into the kinds of “guinea pigs” for whom the Fifth Cir-
cuit expressed such concern in /kospentakis. The conven-
ience of the parties and witnesses has traditionally been
considered in determining whether to hear a declaratory
a
17a
judgment action, Mission Insurance Company, supra, at
602, citing Amerada Petroleum Corp. v. Marshall, 381
F.2d 661, 663-664 (5th Cir. 1967), cert. denied, 389 U.S.
1039, 88 S. Ct. 777 (1968), and the Fifth Circuit has
adopted the same formulation of considerations normally
applied in the forum non conveniens context. /d., citing
Gulf Oil Corp. v. Gilbert, 380 U.S. 501, 508, 67S. Ct. 839,
848 41947). Forum non conveniens is the equitable rule
which gives this Court discretion to decline to exercise
jurisdiction when the action could more appropriately be
tried elsewhere. Even where jurisdiction is authorized by
a venue statute, the Court may resist the imposition of its
jurisdiction by use of this doctrine. See generally Gulf
Oil Corp. v. Gilbert, 330 U.S. 501, 507, 67 S. Ct. 839, 842
(1947): Hotvedt v. Schlumberger Ltd. (N.V.), 914 F.2d
79, 81 (5th Cir 1990).
The status of the case when the forum non conveniens
motion is decided is most significant in the resolution of
the motion, and the Court must review the motion in light
of the status of the case at the time the motion is filed.
In Re Air Crash Disaster Near New Orleans, La., 821
F.2d 1147, 1166 (5th Cir. 1987). Aside from meeting
the burdens of showing an adequate and available forum
for plaintiff and all the defendants, and that the private
and public interests weigh more heavily in favor of trial
in the foreign forum, a movant must also submit the mo-
tion in a timely manner. The rule of the Fifth Circuit is
that a defendant assert a motion to dismiss for forum non
conveniens within a reasonable time after the facts or
circumstances which serve as the basis of the motion have
developed and become known or reasonably knowable to
the defendant. Jd. at 1165, citing Wright, Miller & Cooper,
Federal Practice and Procedure: Jurisdiction § 3828, at
291 (2d ed. 1986). This is tempered, however, by con-
siderations of the non-movants conduct in preventing or
obfuscating the possibility or availability of an otherwise
timely motion for dismissal on these grounds. See [ko-
spentakis, supra, at 179-180.
18a
The alleged untimeliness of Aquafaith’s and Seven
Seas’ motion for forum non conveniens dismissal, coming
a year and a half after removal of Mrs. Jarillas’ Petition
from the state court and their filing of a Complaint for
Declaratory Relief, necessarily raises the question of di-
latory conduct on the movants’ part, as the purpose of the
doctrine itself is to prevent the costs and inconvenience
which this case has already incurred. However, the rec-
ord reveals a lengthy litigation, beginning October 10,
1989, of Mrs. Jarillas’ motion to remand her Petition to
the Louisiana state court, where the forum non conveniens
defense is not available; litigation of her motion for dis-
missal of defendants’ action for declaratory relief also
began on October 5, 1989. This Court’s order of Septem-
ber 18, 1990 denying plaintiff's motion to remand (and
motion to dismiss) was finalized with the Fifth Circvit’s
dismissal of plaintiff’s appeal of the remand issue on No-
vember 14, 1990. Thus no “delay” can be charged to the
defendants while this matter was progressing through an
orderly district and appellate process on other issues.
No significant discovery has been taken in this matter,
and the discovery which was taken was for purposes of
opposing Mrs. Jarillas’ motion to remand and motion to
dismiss. In this case, all the material witnesses relative
to the settlement and release at issue, including the plain-
tiff, reside in the Philippines. The underlying accident
took place in the Baltic Sea, and neither Aquafaith, Sev-
en Seas nor the vessel reside in the United States. The
Court concludes that the law of the Philippines governs
the decedent’s employment contract and that the Philip-
pine Courts of Justice provide the adequate and available
alternate forum for determination of this matter.
Accordingly, for all the aforesaid reasons, IT IS OR-
DERED that the Motion of Aquafaith Shipping Ltd. and
Seven Seas Maritime Ltd. for Summary Judgment in the
above referenced matter is DENIED; Aquafaith’s and
Seven Seas’ Motion for Forum Non Conveniens Dismissal
should be and is hereby GRANTED, dismissing the above
a
19a
referenced actions, with prejudice, conditioned upon Aqua-
faith and Seven Seas certifying in the record by March
29, 1991 that they will:
(1) Submit to service of process and jurisdiction in the
appropriate forum in the Philippines;
(2) Formally waive in the proceeding in the Philip-
pines any statute of limitations defense that has matured
since the commencement of these actions in the American
courts;
(3) Make available in the Philippine proceeding all rel-
evant documents under their control and all relevant wit-
nesses under their control relative to the execution of the
settlement and release at issue;
(4) Make available in the Philippine proceeding all
relevant documents under their control and all relevant
witnesses who were their employees at the time of the
underlying accident and who remain their employees at
the time of trial of the matter;
(5) Agree that any depositions, answers to interroga-
tories, responses to requests for production of documents
and admissions filed herein may be used in the Philippine
proceeding to the same extent as if they originated there;
and
(6) Formatly agree in the Philippine proceeding to
satisfy any final judgment rendered by such Court.
Should Aquafaith and Seven Seas fail to so certify by
April 11, 1991, this Court will then consider their Motion
as denied and this Court shall assume jurisdiction over
the case. Upon timely receipt of such certification by
Aquafaith and Seven Seas, the Clerk of Court is directed
to enter a judgment in accordance herewith.
ll
20a
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 91-3346
AQUAFAITH SHIPPING, LTD.,
and SEVEN SEAS MARITIME, LTD.
Plaintiffs-A ppellees,
versus
EUFEMIA R. JARILLAS, Individually,
as personal representative of the
estate of LEOPOLDO L. JARILLAS, ETC.,
Defendant-A ppellant
Appeal from the United States District Court
for the Eastern District of Louisiana
ON PETITION FOR REHEARING AND SUGGESTION
FOR REHEARING EN BANC
(Opinion June 24, 1992)
(Filed August 6, 1992)
Before POLITZ, Chief Judge, WILLIAMS and DUHE,
Circuit Judges.
PER CURIAM:
(\/) The Petition for Rehearing is DENIED and no
member of this panel nor Judge in regular active service
ree NT
2la
on the Court having requested that the Court be polled
on rehearing en banc, (Federal Rules of Appellate Pro-
cedure and Local Rule 35) the Suggestion for Rehearing
En Banc is DENIED.
ENTERED FOR THE COURT:
‘s/ John M. Duhé, Jr.
United States Circuit Judge
22a
NUMBER 35,757, DIVISION “E”
29TH JUDICIAL DISTRICT COURT
PARISH OF ST. CHARLES
STATE OF LOUISIANA
EUFEMIA R, JARILLAS, INDIVIDUALLY, AS PERSONAL REPRE-
SENTATIVE OF THE ESTATE OF LEOPOLDO L. JARILLAS,
AND AS NATURAL TUTRIX OF THE MiNOR CHILDREN
JANA LYNNE R. JARILLAS, DIORELLA MAE R. JARILLAS,
AND JASON PAUL R. JARILLAS
versus
AQUAFAITH SHIPPING LTD. and
SEVEN SEAS MARITIME LTD.
(Filed: August 30, 1989
Lena C. Breaux Dy. Clerk)
PETITION FOR DAMAGES AND
FOR WRIT OF ATTACHMENT
The Petition of EUFEMIA R. JARILLAS, Individually,
as Personal Representative of the Estate of Leopoldo L.
Jarillas, and as Natural Tutrix of the Minor Children
Jana Lynne R. Jarillas, Diorella Mae R. Jarillas, of full
age of majority and domiciled in and a resident of the
Republic of the Philippines, respectfully represents:
i
The following are made Defendants herein:
A. AQUAFAITH SHIPPING, LTD., on information
and belief a corporation organized under the laws
of the Country of Cyprus, with a principal place of
: | ee
a ithe ind ce
23a
business at the offices of Seven Seas Maritime, Ltd., -
12 A, Finsbury Square, London EC2A 1AS, United
Kingdom, not licensed to do but doing business in
the State of Louisiana, and alleged to have been at
all times material herein the employer of ‘the de-
cedent and the owner/operator of the M/V ALFA;
and
B. SEVEN SEAS MARITIME, LTD., on information
and belief a corporation organized under the laws
of the Country of Great Britain with a principal
place of business at 12 A, Finsbury Square, London
EC2A 1AS, United Kingdom, not licensed to do but
doing business in the State of Louisiana, and al-
leged to have been at all times material herein the
employer of the decedent and the owner/operator
of the M/V ALFA.
2.
On or about November 16, 1988, Leopoldo Jarillas was
serving as an able-bodied seaman and member of the crew
of the M/V ALFA, and in said capacity was serving
aboard the aforementioned vessel when he sustained se-
vere injuries and death as a result of a collision between
the M/V ALFA and a vessel by the name of the M/V
SEADRIVE while en route from New Orleans, Louisiana
to the Soviet Union.
3.
Petitioner avers on information and belief that the
M/V ALFA was at all times relevant owned, managed
and operated by Defendants Aquafaith Shipping, Ltd.
and Seven Seas Maritime, Ltd., said Defendants being at
all pertinent times the employer of the decedent.
4,
At all times material herein there was and still is in
full force and effect an Act of Congress commonly known
as the Jones Act (46 U.S.C. § 688) which Act is appli-
24a
cable hereto in that Defendants were both guilty of acts
of negligence as were other employees of Defendants and
other members of the crew of the M/V ALFA, which acts
of negligence proximately caused the injuries and death
sustained by the decedent.
5.
Pursuant to the general maritime law of the United
States, Defendants had the absolute duty to provide the
decedent with a safe and seaworthy vessel, but said duty
was breached and violated by these Defendants since the
M/V ALFA was unseaworthy, and such unseaworthiness
was a direct and proximate cause of the injuries and
death sustained by the decedent.
6.
Petitioner is entitled to maintain this action in this
Honorable Court pursuant to the Savings to Suitors
Statute, 28 U.S.C. § 1333.
A
The accident sued upon herein and resulting injuries
and death sustained by the decedent were caused by the
unseaworthiness of the aforementioned vessel and the
negligence of the crew when senior officers of the vessel
were not attending to their duties and/or in their proper
| stations, and neither yet was a watch properly posted nor
| was standard safety equipment employed to avert a colli-
sion at sea.
8.
At all times material herein Petitioner and the decedent
were lawful man and wife, and the represented minor
children herein were lawful issue of the marriage between
Petitioner and the decedent, all to the end that Petitioner
brings this action individually and in a representative
capacity on behalf of the represented minors.
25a
9.
As a result of the incident sued upon, the decedent suf-
fered excruciating pain prior to his death by drowning
with his body never being recovered, and Petitioner here-
in hereby asserts a claim for compensatory damages as
are reasonable in the premises relative to the conscious
pain and suffering of the decedent prior to his death, loss
of nurture and guidance to the children as a result of the
decedent’s death, loss of consortium to Petitioner and the
children as a result of the decedent’s death, loss of serv-
ices to the Petitioner and the children as a result of the
decedent’s death, loss of income, Support and accumulated
wealth to Petitioner and the children as a result of the
decedent’s death, the cost of memorial services, mental
anguish and distress of Petitioner and the children as a
result of the decedent’s death, and loss of love and af-
fection as a result of the decedent’s death.
10.
On or about January 9, 1989, less than two months
after the announcement of the decedent’s death, at a time
when Petitioner was unrepresented by counsel, in a state
of financial distress and emotionally distraught, agents
of Defendants presented to Petitioner what purported to
be a full release of all causes of action against Defendants
in consideration of a sum of money token in nature, to
the end that Petitioner executed the documents presented
without being aware of the import or nature of the docu-
ments and without having an opportunity to consult
counsel.
11.
The aforementioned release signed by Petitioner was
executed under duress, deception and/or coercion, was not
executed freely, and was executed without a full under-
standing by Petitioner of her rights or benefit of counsel,
and said release is and was from its inception patently
void and unenforceable pursuant to the general maritime
law of the United States of America.
. 26a
12.
Petitioner is additionally entitled to recover from De-
fendants, in solido, punitive damages in a sum which, in
the premises, will serve to punish Defendants and serve
as an appropriate deterrent to Defendants’ conduct in the
future relative to the callous and wanton disregard of
Defendants’ obligation to furnish a seaworthy vessel and,
or Defendants’ overreaching in inducing Petitioner to sign
an adhesion release in the weeks following her husband’s
death.
13.
Petitioner is informed, believes and therefore alleges
that certain property of the Defendants, to-wit: The M/V
ALFA, is and will be during the pendency of these pro-
ceedings within the navigable waters of the Parish of St.
Charles, and Petitioner desires that a Writ of Attachment
be issued in this action attaching the aforementioned
property of Defendants to secure satisfaction of the
Judgment to be obtained in favor of Petitioner herein
pursuant to Article 3542 of the Louisiana Code of Civil
Procedure.
14,
Both Defendants are non-residents with no duly ap-
pointed agent for service of process within this State
within the meaning of Article 3541 of the Louisiana Code
of Civil Procedure, and this Court should appoint an at-
torney at law to represent Defendants in this proceeding
pursuant to Article 5091(1) of the Louisiana Code of
Civil Procedure, on whom process may be served, and
against whom this proceeding may be conducted contra-
dictorily.
WHEREFORE, Petitioner prays that:
I. The Court appoint an attorney at law to represent
the absent Defendants in this proceeding;
II. A Writ of Attachment issue herein on Petitioner’s
furnishing security as required by law, commanding the
i cence ileal
27a
Sheriff to seize and attach, according to law, the property
of the Defendants within the jurisdiction of this Court
sufficient to satisfy Petitioner’s claims, and more parti-
cularly the M/V ALFA currently situated in the waters
of the Parish of St. Charles, and to hold this property sub-
ject to further Order of this Court; .
III. Citation and service of process be issued against
the Defendants, and after due proceedings are had, there
be judgment rendered herein in favor of Petitioner, EU-
FEMIA R. JARILLAS, Individually, as Personal Repre-
sentative of the Estate of Leopoldo L. Jarillas, and as
Natural Tutrix of the Minor Children Jana Lynne R.
Jarillas, Diorella Mae R. Jarillas, and Jason Paul R.
Jarillas and against Defendants AQUAFAITH SHIP-
PING, LTD. and SEVEN SEAS MARITIME, LTD.., in
solido, in a principal sum as compensatory damages and
as punitive damages which are reasonable in the premises,
with legal interest on all such damages from date of the
loss herein, or, alternatively, from date of judicial de-
mand, until paid, and for all costs of these proceedings;
and
IV. The Writ of Attachment be maintained herein and
the bond furnished by Petitioner cancelled, the property
of Defendants be sold and Petitioner’s claim paid with
preference and priority out of the proceeds.
PAUL L. BILLINGSLEY
Attorney for Plaintiff
By:
PAUL L. BILLINGSLEY
Attorney at Law
Post Office Box 61
Luling, LA 70070
Telephone: (504) 785-8776
Bar Roll Number
28a
C. JOHN CASKEY
Attorney at Law
628 North Boulevard, Suite 200
Baton Rouge, LA 70802
Telephone: (504) 343-9850
Bar Roll Number 3981
RICHARD J. DODSON
Attorney at Law
628 North Boulevard, Suite 100
Baton Rouge, LA 70802
Telephone: (504) 344-0633
Bar Roll Number 4982
29a
NUMBER ——_—-, DIVISION “—”
29TH JUDICIAL DISTRICT COURT
PARISH OF ST. CHARLES
STATE OF LOUISIANA
IKUFEMIA R. JARILLAS, INDIVIDUALLY, AS PERSONAL REPRE-
SENTATIVE OF THE ESTATE OF LEOPOLDO L. JARILLAS,
AND AS NATURAL TUTRIX OF THE MINOR CHILDREN
JANA LYNNE R. JARILLAS, DIORELLA MAE R. J ARILLAS,
AND JASON PAUL R. JARILLAS
versus
AQUAFAITH SHIPPING LTD. and
SEVEN SEAS MARITIME Lrtp.
VERIFICATION
STATE OF LOUISIANA
PARISH OF EAST BATON ROUGE
BEFORE ME, personally came and appeared C. JOHN
CASKEY, who upon being duly sworn deposed and de-
clared that he is an attorney for Petitioner named in
the foregoing Petition; that he has read the same and
that all of the allegations and facts contained therein
are true and correct to the best of his knowledge, infor-
mation and belief.
C. JOHN CASKEY
SWORN TO AND SUBSCRIBED before me, Notary
Public, in my office in Baton Rouge, Louisiana, this 29th
day of August, 1989.
Notary Public
30a
NUMBER -—-———-,, DIVISION “—”
29TH JUDICIAL DISTRICT COURT
PARISH OF ST. CHARLES
STATE OF LOUISIANA
EUFEMIA R, JARILLAS, INDIVIDUALLY, AS PERSONAL REPRE-
SENTATIVE OF THE ESTATE OF LEOPOLDO L. JARILLAS,
AND AS NATURAL TUTRIX OF THE MINOR CHILDREN
JANA LYNNE R. JARILLAS, DIORELLA MAE R. JARILLAS,
AND JASON PAUL R. JARILLAS
versus
AQUAFAITH SHIPPING LTD. and
SEVEN SEAS MARITIME LTD.
ORDER
Considering the allegations of the verified Petition in
this case:
IT IS ORDERED:
1. , Esq., attorney
at law, is appointed to represent the absent Defendants in
this case, on whom the citation to the Defendants shall
be served; and
2. A Writ of Attachment issue herein, as prayed for
and according to law, on Petitioner’s first furnishing
security in the sum of $250.00 pursuant to Article 3544
of the Louisiana Code of Civil Procedure.
ORDER RENDERED AND SIGNED at
, Louisiana, on this — day of August, 1989.
29th Judicial District Court
3la
NUMBER ————,, DIVISION “—”
29TH JUDICIAL DISTRICT COURT
PARISH OF ST. CHARLES
STATE OF LOUISIANA
EUFEMIA R. JARILLAS, INDIVIDUALLY, AS PERSONAL REPRE-
SENTATIVE OF THE ESTATE OF LEOPOLDO L. JARILLAS,
AND AS NATURAL TUTRIX OF THE MINOR CHILDREN
JANA LYNNE R. JARILLAS, DIORELLA MAE R. J ARILLAS,
AND JASON PAUL R. JARILLAS
versus
AQUAFAITH SHIPPING LTD. and
SEVEN SEAS MARITIME Lrtp.
WRIT OF ATTACHMENT
To: The Honorable Johnny Marino, Sheriff
St. Charles Parish, Louisiana
WHEREAS due process having been made before the
Twenty-Ninth Judicial District Court in and for the
Parish of St. Charles, Louisiana, by Eufemia R. Jarillas,
Individually, as Personal Representative of the Estate
of Leopoldo L. Jarillas, and as Natural Tutrix of the
Minor Children Jana Lynne R. Jarillas, Diorella Mae R.
Jarillas, and Jason Pau! R. Jarillas, Petitioner in the
above numbered and entitled proceedings, that Aquafaith
Shipping, Ltd. and Seven Seas Maritime, Ltd., Defendants
herein, are justly and truly indebted to Petitioner and
that the said Aquafaith Shipping, Ltd. and Seven Seas
Maritime, Ltd. are non-resident corporations with no
duly appointed agent for service of process in this state;
NOW, THEREFORE, YOU ARE COMMANDED in
the name of the State of Louisiana and the Twenty-Ninth
32a
Judicial District Court in and for the Parish of St.
Charles, State of Louisiana, to seize and attach according
to law the M/V ALFA to satisfy said Writ and that you
give notice thereof to the attorney at law appointed by
the Court to represent the non-resident Defendant herein,
and to make valid return of the Writ and endorse thereon
the manner in which you have executed it.
By Order of the said Twenty-Ninth Judicial District
Court, Parish of St. Charles, State of Louisiana.
Clerk of Court
33a
RECEIPT AND RELEASE
|PORA Workers Assistance Division Received by
[illegible] Date 1/9/89]
KNOW ALL MEN BY THESE PRESENTS:
That for and in consideration of the sum of TWO
HUNDRED TWENTY THOUSAND PESOS AND
00/100 ONLY (P220,000.00), Philippine Currency, the
receipt of which is hereby acknowledged to my full and
complete satisfaction, broken down as follows:
For death compensation and burial benefits
under POEA Standard Format (14) .. P170,000.00
Donation from Messrs. SEVEN SEAS
ee | SS of P 50,000.00
Total amount to be received .... P220,000.00
I, EUFEMIA R. JARILLAS, of legal age and a resident
of Lot 26 Block 12, Phase 2, Pacita Complex I, San Pedro
Laguna, for myself being the surviving wife and sole
allottee of Able Bodied Seaman (A.B) LEOPOLDO L.
JARILLAS of the vessel M/V “ALFA” who was found
missing after the vessel sufferred collission at Baltic Sea
on 16th November 1988, do by these presents, hereby
remise, release and forever discharge said vessel MV
“ALFA”, her Owners, managers, operators, charterers,
agents, underwritters P and I Club and all parties at
interest therein or thereon whether named or not named,
including but nor limited to INTERORIENT MARI-
TIME ENTERPRISES, INC., SEVEN SEAS MARI-
TIME LTD. (AQUAFAITH SHIPPING CO., LTD.),
from any and all claims, demands, debts, dues, liens,
actions or causes of action at law or in equity, in common
law or in admiralty, statutory or contractual, arising
from and under the laws of Cyprus, the United Kingdom
or the Republic of the Philippines and/or any other
foreign country now held, owned or possessed by me,
related to or concerning whether directly or indirectly,
proximately or remotely, without being limited to but
34a
including the disappearance and death of said A.B
LEOPOLDO L. JARILLAS onboard said MV ALFA.
This instrument is a GENERAL RELEASE intended
to release all liabilities of any character and/or claims
or damages and/or losses and/or any other liabilities
whatsoever, whether contractual or statutory, at common
law or in equity, tortious or in admiralty, now or hence-
forth in any way related to or occuring as a consequence
of the death of my said husband, including but not limited
to all damages and/or losses constituting of loss of sup-
port, loss of earning capacity, loss of all benefits of what-
soever nature and extent incurred, physical pain and
suffering and/or all damages and/or indemnities claim-
able in law, tort, contract, common law, equity and/or
admiralty by me or by any person or persons pursuant
to the laws of Cyprus, United Kingdom or the Republic
of the Philippines and of all other countries whatsoever.
I hereby certify that I am of legal age and that I fully
understand this instrument which was read to me in the
local dialect and I agree that this isa FULL AND FINAL
RELEASE AND DISCHARGE of all the parties and
things referred to herein, and I further agree that this
release may be pleaded as an absolute and final bar tv
any suit or suits or legal proceedings that may hereafter
be prosecuted by me or by any one claiming by, through,
or under me, against any of the persons or things referred
to or related herein for any matter or thing referred to
or related herein. I further certify and agree in my
personal capacity that in case any other heir will claim
from the parties hereinabove referred to or mentioned
herein based on the same occurrence, I agree to give them
whatever is due and will hold the parties hereinabove
mentioned free and harmless from any and all liabilities
whatsoever.
Questions and Answers:
1. Have you read this paper from beginning to end?
Answer: Yes
———_eaaa
f
35a
2. Do you know what this paper is that you are
signing?
Answer: Yes
3. What is this paper that you are signing?
Answer: Receipt & Release
4. Do you know that. signing this paper settles and
ends every right or claim you may have for all damages/
losses, including but not limited to loss of earning ca-
pacity of the deceased, past and future maintenance, sup-
port, suffering, mental anguish, serious anxiety and
similar injury?
Answer: Yes
5. Do you know that upon receipt of the above amount,
you waive all claims you may have for damages/benefits
against the vessel’s Owners and her agents, insurers,
charterers, operators, underwritters, P and I Club, ship-
pers and all other persons in interest therein or thereon,
under all the laws including the common law of Cyprus,
United Kingdom or the Republic of the Philippines?
Answer: Yes
6. Did you in fact receive the amount of TWO HUN-
DRED TWENTY THOUSAND PESOS AND 00/100
ONLY (P220,000.00), Philippine Currency?
Answer: Yes
I further solemnly state and affirm that this Receipt
and Release is not being made of any persuasive state-
ment or representation by any one whomever and for any
reason other than the payment and consideration stated
herein and I agree that the money paid to me for this
release is not an admission of liability.
36a
IN WITNESS WHEREOF, I have hereunto set my
hand this 9th day of January in Pasig, Metro Manila,
Philippines.
/s/ Eufemia R. Jarillas
EUFEMIA R. JARILLAS
(Wife)
in my own capacity and in representation
of my minor children, namely Janalynne,
Diorella Mae, Jason Paul & Joy Anne
Marie
/s/ Rafael U. Macaspac
(Uncle)
SIGNED IN THE PRESENCE OF:
/s/ Ma. Lourdes M. Cortez
P.O.E.A. Sr. DEO
REPUBLIC OF THE PHILIPPINES
MUNICIPALITY OF PASIG
CITY OF MANILA [stamped] SS.
ACKNOWLEDGEMENT
In the Municipality of Pasig, City of Manila (stamped)
Metro Manila, Philippines, this 09 of Jan 1989, be-
fore me, a Notary Public, in and for the said munici-
| pality, personally appeared EUFEMIA R. JARILLAS,
| with Res. Cert. No. 1173245 issued at Q.C. on Nov/88,
| known to me to be the same person who executed the fore-
going Receipt and Release and she acknowledged to me
that she executed the same as her free and voluntary act
and deed, after having the same fully explained to her and
realizing the effects thereof, to be a full and final dis-
charge and release of all the parties referred to therein,
of all the matters and things dealt with in said instru-
ment; that the same was executed and signed by her
without any persuation, promis, threat, force, duress,
)
37a
fraud or representation of any kind by any person whom-
soever and that she understood the full contents thereof
as well as the effects thereof.
WITNESS MY HAND AND NOTARIAL SEAL this
09 of Jan 1989 in the Municipality of Pasig, Metro,
Manila, Philippines.
/s/ R. N. Aguilos
ATTY. RAFAEL N. AGUILOS
Notary Public
Until Dec. 31, 1989
PTR No. 564307
Issued: Jan. 2, 1989, Manila
Doc. No. 48
Page No. 78
Book No.
Series of 1989
38a
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
Civil Action 89-4037
Sect. L Mag. 2
EUFEMIA R. JARILLAS, INDIVIDUALLY, AS PERSONAL REPRE-
SENTATIVE OF THE ESTATE OF LEOPOLDO L. JARILLAS,
AND AS NATURAL TUTRIX OF THE MINOR CHILDREN,
JANA LYNNE R. JARILLAS, DIORELLA MAE R. JARILLAS,
and JASON PAUL R. JARILLAS
versus
AQUAFAITH SHIPPING LTD. and
SEVEN SEAS MARITIME LTD.
PETITION FOR REMOVAL
[Filed September 11, 1989]
TO THE HONORABLE JUDGES
OF THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF LOUISIANA
The Petition of Aquafaith Shipping Ltd. and Seven
Seas Maritime Ltd. respectfully represents upon infor-
mation and belief:
I.
On 30 August 1989, the petitioners recvived a Petition
for Damages and Writ of Attachment, a copy of which
is attached hereto, in an action entitled “Eufemia R.
Jarillas, et al. v. Aquafaith Shipping Ltd. and Seven
Seas Maritime Ltd., Suit No. 35-757, Division “EK”, in
the Twenty-Ninth Judicial] District Court for the Parish
of St. Charles, State of Louisiana.
39a
II.
The above-described action is a civil action over which
this Court has original jurisdiction under the provisions
of 28 U.S.C. 1331, in that this civil action asserts claims
arising under the Constitution, laws and/or treaties of
the United States. Therefore, pursuant to the provisions
of 28 U.S.C. § 1441, this action is one which may be
removed to the United States District Court for the
Eastern District of Louisiana.
ITI.
Petitioners file herewith a bond for the good and suffi-
cient surety on condition, as provided by 28 U.S.C.
§ 1446(d), that it will pay all costs and disbursements
incurred by reason of the removal proceeding hereby
brought should it be determined that this action was not
removable or was improperly removed.
WHEREFORE, Petitioners, Aquafaith Shipping Ltd.
and Seven Seas Maritime Ltd. pray that the above-entitled
action now pending against it in the Twenty-Ninth Judi-
cial District Court for the Parish of St. Charles, State of
Louisiana, be removed therefrom to this Court.
Respectfully submitted,
CHAFFE, MCCALL, PHILLIPs,
TOLER & SARPY
By: /s/ Robert H. Murphy
RoBERT H. MuRPHY—Bar No. 9850
PETER B. SLoss—Bar No. 17142
2300 Energy Centre
1100 Poydras Street
New Orleans, Louisiana 70163
Telephone: (504) 585-7000
Attorneys for defendants,
Aquafaith Shipping Ltd. and
Seven Seas Maritime Ltd.
40a
CERTIFICATE OF SERVICE
I certify that the foregoing has been served on counsel
of record by depositing same in the U.S. Mail, postage
prepaid, this 11th day of September, 1989.
/s/ R. H. Murphy
ROBERT H. MURPHY
4la
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
Civil Action 89-4036
Sect. A Mag. 1
AQUAFAITH SHIPPING Lp. and
SEVEN SEAS MARITIME LTp.
versus
EKUFEMIA R. JARILLAS, INDIVIDUALLY, AS PERSONAL REPRE-
SENTATIVE OF THE ESTATE OF LEOPOLDO L. J ARILLAS,
AND AS NATURAL TUTRIX OF THE MINOR CHILDREN,
JANA LYNNE R. JARILLAS, DIORELLA MAE R. J ARILLAS,
and JASON PAUL R. JARILLAS
COMPLAINT FOR DECLARATORY RELIEF
| Filed September 11, 1989 |
TO THE HONORABLE JUDGES
OF THE UNITED STATES DISTRICT CouRT
FOR THE EASTERN DISTRICT OF LOUISIANA:
The Complaint of Aquafaith Shipping Ltd. and Seven
Seas Maritime Ltd. against Eufemia R. Jarillas, Indi-
vidually, as Personal Representative of the Estate of
Leopoldo L. Jarillas, and as Natural Tutrix of the Minor
Children, Jana Lynne R. Jarillas, Diorella Mae R. Jaril-
las, and Jason Paul R. Jarillas, in a cause of action for
declaratory relief, alleges upon information and belief, as
follows:
I.
Plaintiff Aquafaith Shipping Ltd. (“Aquafaith”) was
and is a legal entity duly organized and existing pursuant
to the laws of the Country of Cyprus.
42a
Il.
Plaintiff Seven Seas Maritime Ltd. (“Seven Seas’) was
and is a legal entity duly organized and existing pursuant
to the laws of the United Kingdom.
Ill.
At all times pertinent hereto, defendant Eufemia R.
Jarillas was and is a citizen of The Republic of The
Philippines, and was domiciled in that nation.
IV.
This is a civil action over which this court has original
jurisdiction under the provisions of 28 USC § 1331, in
that this civil action involves claims arising under the
Constitution, laws and/or treaties of the United States.
V.
This also is an admiralty and maritime claim within
the meaning of Rule 9(h) of the Federal Rules. of Civil
Procedure, and this Court has jurisdiction pursuant to
28 U.S.C. § 1333.
VI.
This is an action for Declaratory Judgment pursuant
to 28 U.S.C. § 2201, for the purpose of determining a
question of actual controversy between the parties, as
hereinafter more fully appears.
VII.
Plaintiff Aquafaith is the owner of the M/V ALFA,
an oceangoing bulk carrier, and Seven Seas is a man-
aging agent for Aquafaith.
VIII.
Leopoldo J. Jarillas was employed as a seaman aboard
the M’-V ALFA pursuant to an employment contract
43a
signed by Jarillas in the Republic of the Philippines,
which contract was processed and approved by The Phil-
ippine Overseas Employment Administration (“POEA”),
the official Philippine governmental authority which sets
the rules and regulations applicable to the employment of
all Philippine seamen.
IX.
On or about 16 November 1989, while the M/V ALFA
was on the Hich Seas in the Baltic Sea, she was involved
in a collision. As a result of the collision Leopoldo L.
Jarillas disappeared and is presumed drowned.
X.
On January 9, 1989, defendant Eufemia R. Jarillas,
the wife of Leopoldo L. Jarillas, entered into an agree-
ment with plaintiffs in the Republic of The Philippines
whereby Eufemia R. Jarillas, individually, and as repre-
sentative of her minor children, and accepted the sum
of 220,000 Philippine PESOS in settlement of all claims
against the M/V ALFA and plaintiffs arising from her
husband’s death.
XI.
In connection with the settlement agreement referred
to in Paragraph X, Eufemia R. Jarillas, individually, and
as representative of her minor children, identified to be
Jana Lynne Jarillas, Diorella Mae Jarillas, Jason Paul
Jarillas and Anne Marie Jarillas executed a receipt and
release which was duly witnessed and notarized. (A copy
of the receipt and release is attached hereto as Exhibit
af sa 2
XII.
The Receipt and Release referred to in Paragraphs X
and XI was voluntarily agreed upon by the parties in
the presence of a representative of the Philippine Over-
seas Employment Administration and the executed Re-
ceipt and Release was filed with the POEA. According
to Philippine law, as set forth in Article 227 of the Labor
44a
Code of the Philippines, this compromise settlement is
final and binding upon the parties. (Copy of Art. 227 of
the Labor Code of the Philippines is attached as Exhibit
- ot »
XIII.
Pursuant to the rules and regulations of the POEA,
the POEA has original and exclusive jurisdiction over all
disputes arising out of POEA approved contracts, such
as the contract between Leopoldo L. Jarillas and _ plain-
tiffs and, more specifically, any claims for death or dis-
ability arising during employment.
XIV.
In August 1989, defendant Eufemia R. Jarillas, indi-
vidually, and as personal representative of the Estate of
Leopoldo L. Jarillas, and as Natural Tutrix of the minor
children Jana Lynne R. Jarillas, Diorella Mae R. Jarillas,
and Jason Paul R. Jarillas filed suit against plaintiffs
Aquafaith and Seven Seas in the Twenty-Ninth Judicial
District Court, for the Parish of St. Charles, in the State
of Louisiana. In the petition, it is alleged that the above-
referenced release was executed by defendant Eufemia
R. Jarillas under duress, deception and/or coercion, was
not executed freely and was executed without a full
understanding of her rights and, further alleges that
said release is unenforceable, and praying for the attach-
ment of the M/V ALFA in St. Charles Parish. This law-
suit had not been served on Aquafaith or Seven Seas at
the time this Declaratory Judgment was filed. However,
a writ of attachment of the M/V ALFA has been issued
in the 29th Judicial District Court and will be effected
when the vessel berths in that parish to load cargo on or
about September 12, 1989.
XV.
Plaintiffs aver that Receipt and Release executed in
the Republic of The Philippines in the presence of the
45a
POEA and on file with the POEA is a valid, final and
binding agreement between the parties which is enforce-
able under the laws of the Republic of the Philippines
and/or, alternatively, under laws of any country.
XVI.
Plaintiffs maintain that the law of the Republic of
the Philippines is the proper law to govern this dispute
and determine the validity and enforceability of the Re-
ceipt and Release executed by the defendant.
XVII.
Plaintiffs maintain that said Receipt and Release is
an absolute bar to any claim for damages by defendant
as a result of her husband’s death.
XVIII.
Plaintiffs maintain that defendant has no right of
action or cause of action under the Jones Act and/or
the General Maritime Law of the United States arising
from her husband’s death.
XIX,
Plaintiffs maintain that this is a case which is governed
exclusively by the law of the Republic of the Philippines
and that the POEA has original and exclusive jurisdic-
tion over all disputes between these parties. However,
because of the Louisiana State Court action filed, but not
yet served, by defendant asserting entitlement to the
benefits of United States Law, and because of the threat
that the M/V ALFA will be attached in Louisiana State
Court in the 29th Judicial District Court for the Parish
of St. Charles pursuant to the writ of attachment that
has already been issued, Plaintiffs have been compelled
to file this Declaratory Judgment suit in the United States
District Court for the Eastern District of Louisiana.
46a
WHEREFORE, plaintiffs pray that defendant Eufemia
R. Jarillas be served via certified mail, return receipt
requested. and through her attorneys in the State of
Louisiana, Richard J. Dodson, Paul W. Billingsly, C. John
Caskey, with a copy of this Complaint for Declaratory
Judgment, together with a summons to appear and an-
swer under oath, and that this Court adjudge and decree
pursuant to its authority under 28 USC § 2201:
1. That Philippine law governs this dispute;
2. That the POEA has the exclusive jurisdiction and
is the appropriate forum to resolve this dispute;
8. That Philippine law and, in particular, Article 227
of the Labor Code of the Philippines, requires a finding
that the Receipt and Release is valid, final and binding
upon the parties;
4. That the forum selection clause and choice of law
provisions of the POEA rules and regulations and Leo-
poldo L. Jarillas’s POEA approved employment contract
are valid and enforceable;
5. Alternatively, that the Receipt and Release executed
by Eufemia R. Jarillas is a valid, final and binding agree-
ment between the parties;
6. That defendant has no cause of action under the
Jones Act and/or the General Maritime Law of the
United States; and
7. That plaintiffs have such other and further relief
in the premises as they may be entitled to receive.
47a
CHAFFE, MCCALL, PHILLIPs,
TOLER & SARPY
By: /s/ Robert H. Murphy
ROBERT H. MurPHY—Bar No. 9850
PETER B. SLOSsS—Bar No. 17142
JOHN N. CRITCHLOW—Bar No. 17539
2300 Energy Centre
1100 Poydras Street
New Orleams, Louisiana 70163
Telephone: (504) 585-7000
Attorneys for plaintiffs,
Aquafaith Shipping Ltd. and
Seven Seas Maritime Ltd.
48a
[SEAL]
EMBASSY OF THE
UNITED STATES OF AMERICA
MANILA, PHILIPPINES
Republic of the Philippines )
City of Manila :
Embassy of the United States of America )
I, Gloria M. Jordan, Vice Consul of the United States
of America at Manila, Philippines, duly commissioned
and qualified, do hereby certify that
** Juanito P. Vitangeol
whose true signature and official seal are, respectively,
subscribed and affixed to the foregoing (annexed) certifi-
cate (document), was on the 3lst day of October, 1989,
the date thereof, Notary Public for and within the City
of Manila, Republic of the Philippines duly commissioned
and qualified, as to whose official acts, faith and credit
are due.
ee
IN WITNESS WHEREOF, I have hereunto set my
hand and affixed the seal of the American Consular Serv-
ices at Manila, Philippines, this 31st day of October, 1989
/s/ Gloria M. Jordan
GLORIA M. JORDAN
Vice Consul of the
United States of America
MNL: PS/6
Feb 1982
| 49a
PHILIPPINE
OVERSEAS
EMPLOYMENT
ADMINISTRATION
Republic of the Philippines
Department of Labor & Employment
POEA Bldg., Ortigas Avenue cor. EDSA,
Mandaluyong, 1501 Metro Manila
P.O. Box 4061/Telex: 42472 POEA PM
Tel. : 722-1142 to 99
30 October 1989
PANDIMAN PHILIPPINES, INC.
3rd Floor Phil. Veterans Bank Bldg.
General Luna St., Intramuros
1002 METRO MANILA
Gentlemen:
This has reference to the letter of Chaffe, McCall, Phil-
ipps, Toler & Sarpy dated 25 October 1989 relative to the
civil action filed by Eufemia Jarillas in the United States
District Court, Eastern District of Louisiana on the death
of her husband, A/B Leopoldo Jarillas and requesting the
confirmation by this Administration of the telex sent on
31 August 1989.
We hereby confirm the said telex message and in sup-
port of your position, please be further informed of the
following:
1. The death compensation of A/B Leopoldo Jarillas
of P170,000.00 in accordance with the POEA Stand-
ard Employment Contract plus owner’s donation of
P50,000.00 was paid to the surviving spouse Eu-
femia Jarillas on 09 January 1989 before Ma.
Lourdes M. Cortez, Sr. Overseas Employment Offi-
cer, Welfare & Employment Office (WEO), POEA.
The copy of the worldwide receipt and release exe-
50a
cuted by Mrs. Eufemia Jarillas is on file with this
Administration.
2. It is one of the functions of the WEO to conciliate
claims of seamen or any other overseas contract
workers or their beneficiaries against the employers
or their agents. Any settlement agreed upon before
said Office, as long as the terms and conditions
thereof are over and above the provisions of the
POEA Standard Employment Contract, and not con-
trary to laws, morals and public policy, is valid and
binding. As far as this Administration is con-
cerned, the settlement of the case of A/B Jarillas
before the WEC is considered closed and terminated.
3. Executive Order No. 247 entitled “Reorganizing the
Philippine Overseas Employment Administration
and For Other Purposes” promulgated on 24 July
1987 provides that the POEA shall “exercise origi-
nal and exclusive jurisdiction to hear and decide all
claims arising out of an employer-employee relation-
ship or by virtue of any law or contract involving
Filipino workers for overseas employment x x x.”
Under Section 2, Rule I, Book VII of the POEA
Rules and Regulations Governing Overseas Employ-
ment, the Administration is mandated to “x x x pro-
vide the worker and his family all assistance they
may need in the enforcement of the contractual ob-
ligations by agencies or entities and/or by their
principals « x x.” Further, Section H of the POEA
Standard Employment Contract provides:
“q. All rights and obligations of the parties to this
Contract, including the annexes thereof, shall
be governed by the laws of the Republic of the
Philippines, international conventions, treaties
and covenants wherein the Philippines is a sig-
natory. i.
b. The Philippine Overseas Employment Adminis-
tration shall have original and exclusive juris-
5la
diction over any and all disputes or controver-
sies arising out of or by virtue of this Con-
tract.”
Enclosed are photocopies of Executive Order No. 247
and the telex message dated 31 August 1989.
We hope to have been of assistance to you.
Very truly yours,
/s/ Crescencio M. Siddayao
CRESCENCIO M. SIDDAYAO
Deputy Administrator
for
Employment and Welfare
REPUBLIC OF THE PHILIPPINES)
) ss.
CITY OF MANILA
SUBSCRIBED AND SWORN to before me: Affiant
exhibited to me his Res. Cert. No: 43322456H issed at
Manila on January 9, 1989.
[ JUANITO P. VITANGCOL
Notary Puk
Until Dec. 31, 1989
PTR No. 564584
Manila 1/3/89]
52a
MSG 176-S[TLX]
18:07 AUG.31.89
PTS
19+
23092
ETPI MNL INFO PN
CHAFFE, MCALL, PHILLIPS, TOLER N SARY
LAW OFFICES
460122 VIA WORLDCOM
58335 VIA WESTERN UNION
A/B CMPTS
ATTN: ATTY BOB MURPHY
RE: MV ALFA
CLAIM OF EUFEMIA JARILLAS/DEATH OF ~—
AB LEOPOLDO JARILLAS
THIS IS PHILIPPINE OVERSEAS EMPLOYMENT
ADMINISTRATION (POEA)
RELATIVE TO THE ABOVE SUBJECT, PLS BE
INFORMED OF THE FF:
1) DEATH COMPENSATION OF AB LEOPOLDO
JARAILLAS OF P170,000.00 PER POEA STANDARD
FORMAT CONTRACT PLUS OWNER’S DONATION
OF P50,000.00 WAS PAID TO SURVIVING SPOUSE
EUFEMIA JARILLAS BEFORE POEA WELFARE
OFFICER ON 9 JANUARY 1989 STOP COPY OF
WORLDWIDE RECEIPT AND RELEASE EXECUTED
BY WIDOW ON FILE AT POEA.
2) PURSUANT TO SAID SETTLEMENT CASE OF
AB JARILLAS’ DEATH COMPENSATION
CONSIDERED TERMINATED.
53a
3) BASED ON PAR. 2 SEC. H OF POEA STANDARD
FORMAT CONTRACT, POEA HAS ORIGINAL AND
EXCLUSIVE JURISDICTION OVER ALL DISPUTES
ARISING OUT OF POEA-APPROVED CONTRACT
FOR YOUR INFORMATION AND GUIDANCE
TKS N RGDS
ADM. ACHACOSO/D.A. SIDDAYAO
POEA MANILA
ETPI MNL INFO PN
64035 POEA PN 1
AAD 000.0 MINS
TIME 08/31 1819
54a
MALACAGUNG
MANILA
EXECUTIVE ORDER NO. 247
REORGANIZING THE PHILIPPINE OVERSEAS
EMPLOYMENT ADMINISTRATION AND FOR
OTHER PURPOSES
WHEREAS, Executive Order No. 5 (1986), provides
that the necessary and proper changes in the organiza-
tional and functional structures of the government, its
agencies and instrumentalities need to be effected to pro-
mote efficiency and effectiveness in the delivery of public
services ;
WHEREAS, it has become necessary to institute
changes in the functional structure of the Philippine
Overseas Employment Administration in order to enhance
its effectiveness in responding to changing market and
economic conditions and to the call of the national devel-
opment plan for the strengthening of the worker protec-
tion and regulation components of the overseas employ-
ment program; and,
WHEREAS, the Philippine Overseas Employment Ad-
ministration has to systematize its operations by ration-
alizing its functions, structure and organization to make
it more efficient in undertaking its principal function of
formulating and implementing a systematic program for
promoting and monitoring the overseas employment of
Filipino workers and for protecting their rights to fair
and equitable employment practices, and in order that it
may respond more effectively to the new demands for
more meaningful welfare services to workers, better pro-
tection of their rights, more efficient adjudication of cases
and more efficient manpower delivery system.
NOW, THEREFORE, I CORAZON C. AQUINO, Pres-
ident of the Philippines, by virtue of the powers vested in
55a
me by the sovereign will of the Filipino people and the
Constitution, do hereby order:
Section 1. Title. This Executive Order shall otherwise
be known as the Reorganization Act of the Philippine
Overseas Employment Administration.
Section 2. Reorganization. The Philippine Overseas
Employment Administration, hereinafter referred to as
the Administration is hereby reorganized, structurally and
functionally in accordance with the provisions of the Exe-
cutive Order.
Section 8. Powers and Functions. To the pursuit of
its mandates, the Administration shall have the following
powers and functions:
(a) Regulate private sector participation in the re-
cruitment and overseas placement of workers by
setting up a licensing and registration system;
(b) Formulate and implement, in coordination with
appropriate entities concerned, when necessary,
a system for promoting and monitoring the over-
seas employment of Filipino workers taking into
consideration their welfare and the domestic
manpower requirements;
(c) Protect the rights of Filipino workers for over-
seas employment to fair and equitable recruit-
ment and employment practices and ensure their
welfare;
(d) Exercise original and exclusive jurisdiction to
hear and decide all claims arising out of an
employer-employee relationship or by virtue of
any law or contract involving Filipino workers
for overseas employment including the disci-
plinary cases; and all pre-employment cases
which are administrative in character involving
or arising out of violation of requirement laws,
(g)
(h)
(i)
(k)
56a
rules and regulations including money claims
arising therefrom, or violation of the conditions
for issuance of license or authority to recruit
workers.
All prohibited recruitment activities and prac-
tices which are penal in character as enumerated
and defined under and by virtue of existing
laws, shall be prosecuted in the regular courts
in close coordination with the appropriate De-
partments and agencies concerned;
Maintain a registry of skills for overseas place-
ment;
Recruit and place workers to service the re-
quirements for trained and competent Filipino
workers by foreign governments and their in-
strumentalities and such other employers as
public interest may require;
Promote the development of skills and careful
selection of Filipino workers for overseas em-
ployment ;
Undertake overseas market development activi-
ties for placement of Filipino workers;
Secure the best terms and conditions of employ-
ment of Filipino contract workers and ensure
compliance therewith;
Promote and protect the well-being of Filipino
workers overseas;
Develop and implement programs for the effec-
tive monitoring of returning contract workers,
promoting their re-training and re-employment
or their smooth re-integration into the main-
stream of national economy in coordination with
other government agencies;
(1)
(m)
(n)
57a
Institute a system for ensuring fair and speedy
disposition of cases involving violation of re-
cruitment rules and regulations as well as vio-
lation of terms and conditions of overseas em-
ployment ;
Establish a system for speedy and efficient en-
forcement of decisions laid down through the
exercise of its adjudicatory function;
Establish and maintain close relationship and
enter into joint projects with the Department of
Foreign Affairs, Philippine Tourism Authority,
Manila International Airport Authority, Depart-
ment of Justice, Department of Budget and
Management and other relevant government en-
tities, in the pursuit of its objectives. The Ad-
ministration shall also establish and maintain
joint projects with private organizations, domes-
tic or foreign, in the furtherance of iis objec-
tives.
Section 4. Structural Organization. The Administra-
tion shall consist of the Governing Board, the Office of
the Administrator, the offices of such number of Deputy
Administrators as may be necessary, Office of the Direc-
tor for each of the principal subdivisions of its internal
structure.
(a)
(b)
The Governing Board shall be composed of the
Secretary of Labor and Employment as Chair-
man, the Administrator and a third member,
considered well-versed in the field of overseas
employment who shall be appointed by the
President to serve for a term of two (2) years;
an’)
The Administrator and such Deputy Adminis-
tor and Directors as may be necessary shall be
appointed by the President upon recommenda-
tion of the Secretary ;
’
(c)
58a
The functional structure of the Administration
shall be established along the areas of: market
development, employment, welfare, licensing,
regulation and adjudication. Each of the prin-
cipal substantive subdivisions of the Administra-
tion shall be headed by a Director and shall have
such departments and units as may be neces-
sary.
Section 5. Regional Extension Units. The Administra-
tion is hereby authorized to set up regional extension
units in such regions as the Governing Board may deter-
mine to be necessary to promote efficient and economic
delivery of its services. The regional extension units shall
be under the administrative supervision of the Labor
Regional Director. It shal! have, among others, the fol-
lowing functions:
(a)
(b)
(c)
(e)
(f)
Execute the policies, plans and programs of the
Administration in the regions outside of the
Metro Manila area;
Coordinate with local government officials on the
matter of implementation of the Administra-
tion’s program on overseas employment;
Advise the central office on the needs of the
region for particular welfare and regulatory
programs;
Establish linkages with other allied government
agencies in the pursuance of the objectives of
the overseas employment program ;
Coordinate the anti-illegal recruitment campaign
in the region;
Perform other functions as the Administration
may deem necessary.
Section 6. New Structure and Pattern. Upon approval
of this Executive Order, the officers and employees of the
Philippine Overseas Employment Administration shall, in
59a
a hold over capacity, continue to perform their respective
duties and responsibilities and receive the corresponding
salaries and benefits unless in the meantime they are
separated from the service. The new structure and staff-
ing pattern for the Philippine Overseas Employment Ad-
ministration shall be approved and prescribed by the
Secretary of the Department of Labor and Employment,
within one hundred twenty (120) days from the approval
of this Executive Order and the authorized positions cre-
ated thereunder shall be filled with regular appointments
by the Secretary of the Department of Labor and Em-
ployment or the President as the case may be. Those
incumbents whose positions are not included therein or
who are not reappointed shall be deemed separated from
the service. Those separated from the service shall re-
ceive the retirement benefits to which they may be en-
titled under existing laws, rules and regulations. Other-
wise they shall be paid the equivalent of one-month salary
for every year of service, or fraction thereof, computed
on the basis of the highest salary received, but in no case
shall such payment exceed the equivalent of twelve (12)
months salary.
Section 7. Prohibition Against the Organizational
Change. No change in the reorganization herein pre-
scribed shall be valid except upon approval of the Presi-
dent for the purpese of promoting efficiency and effective-
ness in the delivery of public service.
Section 8. Funding. Funds needed to earry out the
provisions of this Executive Order shall be taken from
funds available in the Administration.
Section 9. Implementing Authority of Secretary. The
Secretary shall issue such rules, regulations and other
issuances as may be necessary to ensure the effective
implementation of the provisions of this Executive Order.
Section 10. Separability Clause. Any portion or pro-
vision of this Executive Order that may be declared un-
es
60a
constitutional shall not have the effect of nullifying other
portions or provisions that can still subsist and be given
effect in their entirety.
Section 11. Repealing Clause. All laws, ordinances,
rules, regulations, other issuances or parts thereof, which
are inconsistent with this Executive Order are hereby
repealed or modified accordingly.
Section 12. Effectivity. This Executive Order shall
take effect immediately.
APPROVED in the City of Manila, Philippines, this
24th day of July, in the Year of Our Lord, Nineteen
Hundred and Eighty-Seven.
(Sgd.) CoRAZON C. AQUINO
President of the Philippines
By the President:
(Sgd.) JOKER P. ARROYO
Executive Secretary
6la
UNITED STATES CONSTITUTION
U.S. Const. art. I, § 8, Cl. 1.
The Congress shall have Power . .
§ 8, Cl. 3.
To regulate Commerce with foreign Nations, and among
the several States, and with the Indian Tribes:
§ 8, Cl. 10.
To define and punish Piracies and Felonies committed
on the high Seas, and Offences against the Law of Nations;
U.S. Const. art. III, § 2, Cl. 1.
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 shall be
made, under their Authority ;—to all Cases affecting Am-
bassadors, other public Ministers and Consuls;—to all
Cases of admiralty and maritime Jurisdiction;—to Con-
troversies to which the United States shall be a Party;—
to Controversies between two or more States:—between
a State and Citizens of another State;:—between Citizens
of different States;—between Citizens 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.
U.S. Const. art. VI, cl. 2.
This Constitution, and the Laws of the United States
which shall be made in Pursuance thereof; and all Treaties
made, or which shall be made, under the Authority of the
United States, shall be 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 notwithstanding.
62a
FEDERAL STATUTES INVOLVED
28 U.S.C. § 1831. Federal question
The district courts shall have original jurisdiction of
all civil actions arising under the Constitution, laws, or
treaties of the United States.
(As amended July 25, 1958, Pub.L. 85-554, § 1, 72 Stat.
415; Oct. 21, 1976, Pub.L. 94-574, § 2, 90 Stat. 2721;
Dec. 1, 1980, Pub. L. 96-486, §2(a) 94 Stat. 2369.)
28 U.S.C. § 1833. Admiralty, maritime and prize cases
The district courts shall have original jurisdiction,
exclusive of the courts of the States, of:
(1) Any civil case of admiralty or maritime
jurisdiction, 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.
(As amended May 24, 1949, c. 139, § 79, 68 Stat. 101.)
28 U.S.C. § 1441. Actions removable generally
(a) Except as otherwise expressly provided by Act of
Congress, any civil action brought in a State court of
which the district courts of the United States have origi-
nal jurisdiction, may be removed by the defendant or the
defendants, to the district court of the United States for
the district and division embracing the place where such
action is pending. For purposes of removal under this
chapter, the citizenship of defendants sued under fictitious
names shall be disregarded.
(b) Any civil action of which the district courts have
original jurisdiction founded on a claim or right arising
under the Constitution, treaties or laws of the United
63a
States shall be removable without regard to the citizen-
ship or residence of the parties. Any other such action
shall be removable only if none of the parties in interes
properly joined and served as defendants is a citizen of
the State in which such action is brought.
(c) Whenever a separate and independent claim or
cause of action within the jurisdiction conferred by sec-
tion 1331 of this title, is joined with one or more other-
wise non-removable claims or causes of action, the entire
case may be removed and the district court may deter-
mine all issues therein, or, in its discretion, may remand
all matters in which state law predominates.
(As amended Oct. 21, 1976, Pub.L. 94-583, § 6, 90 Stat.
2898; June 19, 1986, Pub.L. 99-336, §3(a), 100 Stat.
637; Nov. 19, 1988, Pub.L. 100-702, Title X, § 1016(a),
102 Stat. 4669; Dec. 1, 1990, Pub.L. 101-650 Title ITI,
$ 312, 104 Stat. 5114.)
28 U.S.C. § 2201. Creation of remedy
(a) In a ease of actual controversy within its juris-
diction, except with respect to Federal taxes other than
actions brought under section 7428 of the Internal Rev-
enue Code of 1986, a proceeding under section 505 or
1146 of title 11, or in any civil action involving an anti-
dumping or countervailing duty proceeding regarding a
class or kind of Canadian merchandise, as determined by
the administering authority, any court of the United
States, upon the filing of an appropriate pleading, may
declare the rights and other legai relations of any inter-
ested party seeking such declaration, whether or not fur-
ther relief is or could be sought. Any such declaration
shall have the force and effect of a final judgment or
decree and shall be reviewable as such.
(b) For limitations on actions brought with respect
to drug patents see section 505 or 512 of the Federal
Food, Drug, and Cosmetic Act.
64a
(As amended May 24, 1949, c. 139, § 111, 63 Stat. 105;
Aug. 28, 1954, ec. 1033, 68 Stat. 890; July 7 1958, Pub.L.
85-508, § 12(p), 72 Stat. 349; Oct. 4, 1976, Pub.L. 94-455,
Title XIII, § 1306(b) (8), 90 Stat. 1719; Nov. 6, 1978,
Pub.L. 95-598, Title II, § 249, 92 Stat. 2672; Sept. 24,
1984, Pub.L. 98-417, Title I, § 106, 98 Stat. 1597; Sept.
28, 1988, Pub.L. 100-449, Title IV, § 402(c), 102 Stat.
1584; Nov. 16, 1988, Pub.L. 100-670, Title I, § 107(b),
102 Stat. 3984.)
28 U.S.C. § 2202. Further relief
Further necessary or proper relief based on a declara-
tory judgment or decree may be granted, after reasonable
notice and hearing, against any adverse party whose
rights have been determined by such judgment.
65a
STATE STATUTE INVOLVED
Louisiana Code of Civil Procedure, Art. 123. Forum non
conveniens
A. For the convenience of the parties and the wit-
nesses, in the interest of justice, a district court upon
contraditory motion, or upon the court’s own motion after
contradictory hearing, may transfer a civil case to an-
other district court where it might have been brought;
however, no suit brought in the parish in which the plain-
tiff is domiciled, and in a court which is otherwise a court
of competent jurisdiction and proper venue, shall be trans-
ferred to any other court pursuant to this Article.
B. Except as provided in Paragraph C, upon the con-
tradictory 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 omissions originating outside of this
state, when it is shown that there exists a more appro-
priate forum outside of this state, taking into account the
location where the acts giving rise to the action occurred,
the convenience of the parties and witnesses, 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 interest of justice, and before the rendition of the
judgment of dismissal, the court shall require the defend-
ant 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 com-
petent jurisdiction within sixty days from the rendition
of the judgment af dismissal.
C. The provisions of Paragraph B shall not apply to
claims brought pursuant to 46 USC § 688 or federal
maritime law.
Added by Acts 1970, No. 294, §1. Amended by Acts
1988, No. 818, $1, eff. July 18, 1988.
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.