Petition for Writ of Certiorari — Craig v. Atlantic Richfield Co.

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Supreme Court, 0.8.

FILED

94 194 AUG 11994

No. __prrigg oF THE CLERK

In The

Supreme Court of the Wnited States

October Term, 1994

—_ * ——e

TEN FONG CRAIG, individually and as Administratrix

of the Estate of WILLIAI.1 HENRY CRAIG, deceased,

Petitioner,

ATLANTIC RICHFIELD COMPANY, BRINKERHOFF

MARITIME DRILLING CORPORATION, and

CROWLEY MARITIME CORPORATION,

Respondents.

$$ 4 ——_________

Petition For Writ Of Certiorari

To The United States Court Of Appeals

For The Ninth Circuit

————— .

PETITION FOR WRIT OF CERTIORARI

—— >

JOHN O’QUINN

Counsel of Record

O’QuINN, KERENSKY,

McANINCH & LAMINACK

2300 Lyric Center

440 Louisiana

Houston, Texas 77002

(713) 223-1000

Attorney for Petitioner

MICHAEL F. STURLEY

727 East 26th Street

Austin, Texas 78705

(512) 471-6318

Of Counsel

QUESTIONS PRESENTED

1. In an injured employee’s action against an employer

under the Jones Act, 46 U.S.C. App. § 688, or the Federal

Employers’ Liability Act, 45 U.S.C. §§ 51-60, the employer is

legally responsible for the negligent acts of its “agents.” Must

the negligent party be in privity of contract with the employer

to qualify as an “agent,” or is anyone performing an employ-

er’s operational activities with the employer’s approval an

“agent” of the employer?

2. Under Rule 39(b) of the Federal Rules of Civil Proce-

dure, a district court “in its discretion” may order a jury trial

notwithstanding a party’s failure to make a timely demand. Is

a court’s discretion under Rule 39(b) constrained by a general

prohibition against granting relief “when the failure to make a

timely demand results from an oversight or inadvertence’? If

a court’s discretion is not so constrained, what standards

should guide a district court in the exercise of its discretion?

(i)

LIST OF PARTIES

All parties to the proceeding in the court of appeals

appear in the caption of the case. A number of foreign

corporations were originally defendants in the district court,

but they were dismissed from the case before trial and were

not parties to the proceeding in the court of appeals.

(ii)

TABLE OF CONTENTS

GPUPRSUR UUM UREMEUINUEEID ccccccccccccccccscens i

pp ey ey 9 | ree Vv

EET aedecseecccseccesoocvecssecs l

PPPUEEEETY Sacer ecetectenecesccccccesees 2

STATUTES AND RULES INVOLVED .......... 2

DTT SeeUbatabudhesceseeccrccccncses 2

REASONS FOR GRANTING THE PETITION ...... 6

THE NINTH CIRCUIT, IN CONFLICT WITH

OTHER COURTS, HAS MISCONSTRUED

THE HOPSON/SINKLER DOCTRINE .......... 6

1. The Hopson/Sinkler Doctrine .............. 7

2. The Hopson/Sinkler Doctrine

EE cc weccecccccesecses 10

. The Hopson/Sinkler Doctrine in Other Couris ll

> W

. The Importance of Resolving the Conflict .... 15

THE NINTH CIRCUIT, IN CONFLICT WITH

OTHER COURTS OF APPEALS, HAS

IMPROPERLY LIMITED THE DISTRICT

COURT'S DISCRETION UNDER RULE 39(b)

OF THE FEDERAL RULES OF CIVIL

EE OE 16

1. The Position in the Second and Ninth Circuits 18

2. The Position in Other Circuits .........ec0. 20

(ill)

(a) The Fifth and Tenth Circuits ........... 21

Ce) “Tee ee EE nda ckcdcdcececesec 23

and District of Columbia Circuits ....... 26

3. The Importance of Resolving the Conflict .... 28

65 Shi. 3) errr rr rr yr rr rr re rr er rT 30

ARTE A ce cicsescccvasacescewesesesesaee la

ARTE soccer arecsicesewensecepecesies 13a

PUT EIEG Ciceccctvvesavccceceusecuesess 23a

PET RPEMR ED ccccccceseecassetecceceseasess 33a

PTE wee creveneeswsansecceeeuedeuss 44a

PETRIE T ostavessswetseccsessecedeeedes 45a

(iv)

TABLE OF AUTHORITIES

CASES:

Akin v. PAFEC Ltd., 991 F.2d 1550 (11th Cir.

| SPR SARE RAS SRA er ORL Us ROR 23

AM International, Inc. v. Eastman Kodak Co.,

648 F. Supp 506 (N.D. Ill. 1986) oo. 19

AMF Tuboscope, Inc. v. Cunningham, 352 F.2d

Rr RM Ms URED Niccassucsdanssenet titedkescotoes 17, 22-23

Baker v. Raymond International, Inc. , 656 F.2d

173 (Sth Cir. 1981), cert. denied, 456 U.S. 983

CRO. Nooacitebias sede smeahneaaeie cee tate hic cecicaceeedads 15

Beckham v. Safeco Insurance Co. of America,

Fe ae PP es FED ainncucsechscevtcicnisccnncecceess 18

Bell v. Cameron Meadows Land Co., 669 F.2d

BBP TIE oss snancinseccuaidccnciecachccaptoneces 18

Beilmore v. Mobil Oil Corp., 783 F.2d 300 (2d

REDE DP aie TURES pel iirc a oe ee ae

Berda v. CBS Inc., 800 F. Supp. 1272 (W.D. Pa.

Lb! NRO tn NE Ts Rapenadet OR sili enone SN “te ee 28

Blau v. Del Monte Corp., 748 F.2d 1348 (9th

Cir. 1984), cert. denied, 474 U.S. 865 (1985) ..... 4,18

Broussard v. Marine Transport Lines, 369 F.

SN, Ber Ut Us BUFF hoe occttnicsesvecccceccvese. 14

Bush v. Allstate Insurance Co., 425 F.2d 393

(Sth Cir. 1970), cert. denied, 400 U.S. 833

Gr sey ears reece eats Wi ccince a daceees 21

Carney v. Pittsburgh & Lake Erie Railroad, 316

F.2d 277 (3d Cir. 1963), cert. denied, 375 U.S.

| CERN ee aE poke ee ee 7,13

Carr v. Wal-Mart Stores, Inc., 138 F.R.D. 80

SE il he onan scabs oath atuedocinceceone 21

Carter v. Union Railroad Co., 438 F.2d 208 (3d

Cs WAP Wide caeeccneecshccc Gir asisseccamuttnd dh kcvedces 7, 13

(v)

Cascone v. Ortho Pharmaceutical Corp., 702

ee EEE Als BID sacteeccempecesaccecenencoese 19, 20, 24

Central Gulf Steamship Corp. v. Sambula, 405

F.2d 291 (Sth Cir. 1968) ...... jivtnceiiohtinidipwaiesecennte

Chandler Supply Co. v. GAF Corp., 650 F.2d

NTR IIR IIE sith sisisticcacistnsuncndinanbsdanvessccscesees

Chauffeurs, Teamsters & Helpers Local No. 391

v. Terry, 494 U.S. 558 (1990) ..........ccccccccceesees

Cox v. C.H. Masland & Sons, 607 F.2d 138 (Sth

ESR en a

Curtis v. Loether, 415 U.S. 189 (1974) voce.

Daniel International Corp. v. Fischbach &

Moore, Inc., 916 F.2d 1061 (Sth Cir. 1990) _.....

Davidson Pipe Co. v. Laventhol & Horwath, 125

Fe Re Bs RID censevcecenniecesznpssceness

EEOC v. Britrail Travel International Corp., 129

FEA TEN SID. crontrceistapinctvtnctacicsecees

Epline v. M.T. Epling Co., 435 F.2d 732 (6th

Cir. 1970), cert. denied, 401 U.S. 963 (1971) ....

Farias v. Bexar County Board of Trustees for

Mental Health Mental Retardation Services,

925 F.2d 866 (Sth Cir. 1991), cert. denied, 502

iA See ey Se Rd | en

FDIC vy. Cafritz, 770 F. Supp. 28 (D. D.C. 1991)

G. Bauknecht GmbH vy. Electronic Relays, Inc.,

569 F. Supp. 404 (N.D. Ill. 1983) .e.ecescceseeensee.

General Tire & Rubber Co. v. Watkins, 331 F.2d

192 (4th Cir. 1964), cert. denied, 377 U.S. 952

CI ini daatitiresnts muatenehentintasebbanienstcadesteneve

Green Construction Co. v. Kansas Power &

Light Co., 1 F.3d 1005 (10th Cir. 1993) o.........

Hamilton v. Marine Carriers Corp., 332 F. Supp.

RR ef | ee ne

Higgins v. Boeing Co., 526 F.2d 1004 (2d Cir.

REP EIIIED scccnsnicennvsicinnicslainanatiibeovatieendonnes

(vi)

eeeeee

oreeee

Hiotis v. Sherman Distribuiors of Maryland,

Inc., 607 F. Supp. 217 (D. D.C. 1984) oe. 27

Hopson v. Texaco, Inc., 383 U.S. 262 (1966)

NR EE i ee IT Om 5-7, 9-14

Justice v. Pennzoil Co., 598 F.2d 1339 (4th Cir.

STD seceasha tat cilbidsletnbahiendneiebenstdddumateibisindedibemsnateten 27

Karol v. Bear Stearns & Co., 708 F. Supp. 199

BN IE Sei intiictnbivadiciiinccinidibiaianines 17-18, 24

Kitchen v. Chippewa Valley Schools, 825 F.2d

ee al cesttanecbnensecinson 27

Kroh Brothers Development Co., In re, 108 B.R.

FRRe GNU, WES IR: BID csnceccscsnccccesecicicececceces 27

Lee v. Poyle-Midway Household Products, Inc.,

poe eB A . +) I 28

Lewis v. Thigpen, 767 F.2d 252 (Sth Cir. 1985) ..... 17,21

Lewis v. Time, Inc., 710 F.2d 549 (9th Cir.

TIPU idihdeesioidicsentahenbabiatieeienteinimantaiveiconiins 5, 17, 18, 20

Littlefield v. Fort Dodge Messenger, 614 F.2d

581 (8th Cir. 1980), cert. denied, 445 U.S. 945

IEEE eal teteindeitiiciihs ca cadaidetncdadincainiGbisieckeaserones 27

Mardesich v. Marciel, 538 F.2d 848 (9th Cir.

gS ATER aed ck Se 19

May v. Melvin, 141 F.2d 22 (D.C. Cir. 1944) oo... 27

McCray v. Burrell, 516 F.2d 357 (4th Cir. 1975)

I a scidintiascivcoses 27

McDermott International, Inc. v. Wilander, 498

Se ETI iti kieelaschavecieatacpieahinnbiintecsinvestndeecens 16

McLaughlin v. Sun Transport, Inc., 1986 AMC

TEEPE Sp TU Doe nS aN OOOO 13

Merritt v. Faulkner, 697 F.2d 761 (7th Cir.

1983), cert. denied, 464 U.S. 986 (1983) oo... 27

Moody v. Pepsi-Cola Meirepolitan Bottling Co.,

hem by OE Lo | eT 24, 27

Moores v. Greenberg, 834 F.2d 1105 (1st Cir.

SUPETTE sch: diesinlacictinlbasiiabanievipnanadinesssoledaiansdabsahicsiceiantins 22

(vil)

Mounteer v. Marine Transport Lines, 463 F.

i Fie Ca IE oektsetcecinipbicinieivnseovenenecae 13

Noonan vy. Cunard Steamship Co., 375 F.2d 69

I Ce aise itieiecineitnidcdeabanitbeneen 17, 20

O’Malley v. United States Fidelity & Guaranty

Co., 776 F.2d 494 (Sth Cir. 1985) (per curiam) _...... 21

Orlowski v. TRW, Inc., 765 F. Supp. 1277 (E.D.

Re ND ahscensiiisceisgalineitiniicttcennndniiacdciiin 17, 27

Panama Railroad Co. v. Johnson, 264 U.S. 375

EE aichstiliciesischsiecseisdniaaceieladiamabiianicaldaaieaMeatiadianaisitbbbanctwnseate 25

Parrott v. Wilson, 707 F.2d 1262 (11th Cir.

1983), cert. denied, 464 U.S. 936 (1983) ..... 23, 24, 27

Pinemont Bank v. Belk, 722 F.2d 232 (Sth Cir.

POM cciisis\lstatinstidnadnailanaae nae eeibamadabduicaibialienainsess 21-23

Polay v. West Co., 629 F. Supp. 899 (E.D. Pa.

PENNE iidainicsll coedcasaaaiaiimiiadeahaantabteiisasiaieidees 28

Rachal v. Ingram Corp., 795 F.2d 1210 (Sth Cir.

PD Sbdidea tis ctincipikitelidisccemntaaannaaninn ii 4, 25, 26

Raya v. Maryatt Industries, 829 F. Supp. 1169

NE II ahcien sdilickitisinoadiiathdlagiias iplialticmtenitivonaosin 17

Rowlett v. ©. “euser-Busch, Inc., 832 F.2d 194

CURE GARR SER Aicihensmniscniteintseniinsnnseobainn 17, 21, 22, 26

Salvail v. Great Northern Railway, 156 Mont.

Si Sr ED wdadesnchiciscncncdipdiinsicnnnces. 7542

Schroeder v. Pennsylvania Railroad, 397 F.2d

SF CEs, Se ehstaie a eplsegleitddnderes rie 3 Me

Shenker v. Baltimore & Ohio Railroad Co., 374

Cha BE hiciatracciiantcecsbaiede a bapmsnnintiveiesesenes 15

Sinkler v. Missouri Pacific Railroad Co., 356

GRY See UIE Alindrkecsintiiacnnesaasnaiibibdibtevaccweses 5-13

Smith v. Norfolk & Western Railway, 407 F.2d

501 (4th Cir. 1969), cert. denied, 395 U.S. 979

§ PRESENT: -Nelt ay ear Ss Aly TT Ae crt ee ea 7, 43

Southwest Marine, Inc. v. Gizoni, 502 U.S. ___

I ius 16

(vill)

Spinks v. Chevron Oil Co., 507 F.2d 216 (5th

Rill TIPE dalicicdaduliecintdimesabtmidaceniueiiblianibdpiceniesenecavensee 15

Sutton v. Atlantic Richfield Co., 646 F.2d 407

Se Sn PIED eecinsuicsiced Diateesbdacntedstrtcedécteascstinieres 19

Swofford v. B & W, Inc., 336 F.2d 406 (Sth Cir.

1964), cert. denied, 379 U.S. 962 (1965) ..... 17, 21-23

Tavoulareas v. Piro, 93 F.R.D. 11 (D. D.C.

PORTE Snndedabae tabla bade uaabins Medeikeauieowriecsciniancteses 27

Thomas vy. Grigorescu, 582 F. Supp. 514 (S.D.

N.Y. 1984), aff'd without opinion, 751 F.2d

Fee EE Siiichis dirs eancsilasidacainnistsinwncininneniees 14

Tim v. American President Lines, 409 F.2d 385

Ee, Be | Miitetinseeiiciiarcliscnkevitivciniinnes 5, 7,10, 15

Tull v. United States, 481 U.S. 412 (1987) woe. 28

United Missouri Bank of Kansas City, N.A., In

re, 901 F.2d 1449 (8th Cir. 1990) .0...........cccceseceeess 27

Walton v. Eaton Corp., 563 F.2d 66 (3d Cir.

gf RRS a eR SP oS pC 17, 28

Washington v. New York City Board of Estimate,

709 F.2d 792 (2d Cir. 1983), cert. denied, 464

(iia bins ksaideubilevensdsiiainhasstnceiicinesssvtes 17

William Goldman Theatres, Inc. v. Kirkpatrick,

Oe OR I Ie ROTO ccensectservsscsduscssensvccscnccsee 19

Wysowski v. Sitmar Cruises, 127 F.R.D. 446 (D.

Se I scusheaeteaipubddabinilsdlidnidiireiniiatadiassocsenees 24

STATUTES AND FEDERAL RULES:

Rules Enabling Act of 1934, ch. 651, 48 Stat.

1064, codified as amended at 28 U.S.C. § 2072 = 29-30

IE. daetiinbnbiansekanntanahinidsintelenapeecois iy. By

ee alas snl ccitdndcnseninadtueunnetsboanens 2,4

jy we Be om) oS | 6-8, 11, 13-15

Pe Se ies IE ernecevnteeceescssysnicscetccenins 2, 6,9

Jones Act, 46 U.S.C. App. § 688(a) ................... passim

(ix)

Conformity Act of 1872, ch. 255, § 5, 17 Stat.

Oly a | | bi delstaviiontchaniusiecddindiagabdosen i aneeeeede aaa 29

ey Rs Te IE. ‘eeschpensncctediainseemiiaetae tani £4, 4, 29)48

SU, Wa aa MCT wetidiedcovosnibeisncideensdosadogdaniaian passim

OTHER AUTHORITIES:

S. REP. NO. 1174, 69th Cong., Ist Sess. (1926) ........ 30

The “Rules of Civil Procedure for the District

Courts of the United States,” Adopted by the

Supreme Court: Hearings Before the House

Committee on the Judiciary, 75th Cong., 3d

Un a a ictodcichwanniadvevaie 30

ERNEST E. SMITH ET AL., INTERNATIONAL

PETROLEUM TRANSACTIONS (1993) oo....ce.eee.. anmee 15

9 CHARLES ALAN WRIGHT & ARTHUR R. MILLER,

FEDERAL PRACTICE AND PROCEDURE § 2334

CETSES -<ssansiaciancea ane 18, 26-28

(x)

In the Supreme Court of the United States

OCTOBER TERM, 1994

No. —

TEN FONG CRAIG, individually and as Administratrix

of the Estate of WILLIAM HENRY CRAIG, deceased,

Petitioner,

Vv.

ATLANTIC RICHFIELD COMPANY, BRINKERHOFF

MARITIME DRILLING CORPORATION, and

CROWLEY MARITIME CORPORATION,

Respondents.

Petition for Writ of Certiorari to the

United States Court of Appeals for the Ninth Circuit

Petitioner, Ten Fong Craig, respectfully petitions for a

writ of certiorari to review the judgment of the United States

Court of Appeals for the Ninth Circuit in this case.

OPINIONS BELOW

The opinion of the court of appeals, reprinted as Appen-

dix A (“App. A”) at page la, is officially reported at 19 F.3d

472 (9th Cir. 1994). It is also reported at 1994 AMC 1354.

The district court’s Memorandum Opinion and Order filed

August 16, 1991, reprinted as App. B at 13a, is unreported.

The district court’s Memorandum Opinion and Order filed

April 8, 1992, reprinted as App. C at 23a, is unreported. The

district court’s Findings of Fact and Conclusions of Law filed

August 7, 1992, reprinted as App. D at 33a, is unreported.

JURISDICTION

Petitioner seeks review of the judgment of the Court of

Appeals for the Ninth Circuit, which was dated and entered

on March 23, 1994. A timely petition for rehearing was filed

on April 6, 1994, and denied on May 3, 1994. See App. E at

44a. This petition for certiorari was filed within ninety days of

that date, and this Court’s jurisdiction is invoked under 28

U.S.C. § 1254(1). The district court had jurisdiction under

28 U.S.C. § 1331 and 46 U.S.C. App. § 688(a).

STATUTES AND RULES INVOLVED

The texts of the following statutes and rules are reprinted

in App. F at 45a-47a: 28 U.S.C. § 1331 (federal question jur-

isdiction); 28 U.S.C. § 1333(1) (admiralty jurisdiction); the

Jones Act, 46 U.S.C. App. § 688(a); the Federal Employers’

Liability Act, § 1, 45 U.S.C. § 51; FED. R. CIv. P. 38(a), (b),

(d); FED. R. Civ. P. 39(a), (b).

STATEMENT

The relevant facts are undisputed. Respondent Brinker-

hoff Maritime Drilling Corporation (“BMD”), a _ wholly-

owned subsidiary of respondent Crowley Maritime Corpora-

tion (“Crowley”), employed petitioner’s late husband, William

Henry Craig (“Craig”), as a seaman aboard the offshore dril-

ling barge Brinkerhoff-I. (Findings of Fact! 113-4) Craig

was accordingly a “seaman” and BMD was an “employer” for

purposes of the Jones Act, 46 U.S.C. App. § 688(a). (Find-

ings of Fact 4 3)

In October 1979, BMD entered into a drilling contract

with Atlantic Richfield Indonesia Inc. (“ARII’), a wholly-

owned subsidiary of respondent Atlantic Richfield Company

1 “Findings of Fact” refer to the findings included in the district court's

Findings of Fact and Conclusions of Law, filed August 7, 1992, App. D

at 34a-37a.

(“ARCO”), under which BMD agreed to operate the barge in

areas designated by ARII. (Findings of Fact 415) Thereafter,

ARII and Hudbay Oil (Malacca Strait) Ltd. (“Hudbay”) exe-

cuted a use agreement which provided that BMD would per-

form drilling operations for Hudbay as instructed by ARII.

Pursuant to this agreement, BMD moved the Brinkerhoff-I to

a Hudbay lease concession in the Strait of Malacca, off the

coast of Indonesia. (Findings of Fact 11 6-7)

Seamen generally spent two weeks on the Brinkerhoff-l,

followed by two weeks of rest and relaxation in Singapore

before returning for another two weeks on the vessel. Under

the drilling contract, BMD was responsible for arranging the

crew’s air transportation when it originated outside of Indo-

nesia. (Daywork Drilling Contract, Schedule D, 148) BMD,

ARII, and Hudbay nevertheless decided that P.T. Airfast Ser-

vices (“Airfast”) would fly the crew from Singapore to Pakan-

baru, Indonesia, pursuant to an aircraft charter agreement be-

tween Hudbay and Airfast. (Findings of Fact 18) The crew

would then complete its journey by helicopter from Pakan-

baru to the Brinkerhoff-I. (Findings of Fact 14) In short,

Airfast performed one of BMD’s contractual obligations, an

operation essential to the mission of the Brinkerhoff-I, but

there was no direct contract between Airfast and BMD. The

contractual chain between Airfast and BMD instead ran from

Airfast to Hudbay (the aircraft charter agreement), from Hud-

bay to ARII (the use agreement), and from ARII to BMD (the

drilling contract).

On April 28, 1981, Craig was a passenger on the Airfast

flight from Singapore to Pakanbaru, en route to another two-

week shift on the Brinkerhoff-I. As a result of heavy fog and

pilot error, the plane crashed on its approach for landing in

Pakanbaru. Craig was one of the people killed in the crash.

(Findings of Fact 91 1-3)

Petitioner brought the present action in 1983 under the

Jones Act, 46 U.S.C. App. § 688(a), relying on the district

court’s federal question jurisdiction, 28 U.S.C. § 1331 (rather

etl

than its admiralty jurisdiction, 28 U.S.C. § 1333(1)). By

bringing her action on the “law side” instead of the “‘admiralty

side,” petitioner was entitled to a trial by jury. Before she

demanded a jury trial, however, ARCO (a defendant below)

made a timely demand. Relying on ARCO’s demand and

FED. R. CIv. P. 38, 39(a)(1), petitioner’s trial counsel be-

lieved that a further demand was unnecessary. The action

was designated on the docket as a jury action, see FED. R.

Civ. P. 39(a), and everyone involved appeared to treat it as a

jury action for the next eight years. Nine months before trial,

however, the district court sua sponte transferred the case to

the non-jury docket on the ground that as a defendant ARCO

was not entitled to demand a jury trial in a Jones Act case. In

reaching this conclusion, the court relied principally on Ra-

chal v. Ingram Corp., 795 F.2d 1210 (Sth Cir. 1986), which

was decided three years after the present case was filed. See

App. C at 26a-28a. Because petitioner could not rely on AR-

CO’s demand and had not made her own demand, the court

concluded that she had waived her right to a trial by jury. See

FED. R. CIv. P. 38(d).

When the district court transferred the case from the jury

docket, petitioner filed a motion requesting a jury trial under

FED. R. CIV. P. 39(b), which gives a court the discretion to

order a jury trial “notwithstanding the failure of a party to

demand a jury.” The district court, however, concluded that

petitioner’s failure to make a timely demand “was clearly

based on oversight, inadvertence, and inexcusable neglect’

because her reliance on ARCO’s demand was not reasonable.

App. C at 30a. Under Ninth Circuit precedent, a court’s Rule

39(b) discretion ““‘is narrow ... and does not permit a court

to grant relief when the failure to make a timely demand re-

sults from an oversight or inadvertence.’ Blau v. Del Monte

Corp., 748 F.2d 1348, 1357 (9th Cir. 1984).” App. C at 29a.

Accordingly, the court denied petitioner’s Rule 39(b) motion.

After a bench trial, the district court held that BMD was

not directly negligent in Craig’s death.2 App. D at 41a-42a,

43a (18). It also held that Airfast’s negligence could not be

imputed to BMD under the doctrine established by this Court

in Hopson v. Texaco, Inc., 383 U.S. 262 (1966) (per curiam),

and Sinkler v. Missouri Pacific Railroad Co., 356 U.S. 326

(1958). See App. D at 38a, 42a (15); App. B at 15a-19a.

On appeal, the Ninth Circuit affirmed on all issues. It ac-

cepted the district court’s reasoning to conclude that ARCO

was not entitled to demand a jury trial, 19 F.3d at 475-476,

App. A at 4a-7a, and thus that petitioner was not entitled to

rely on ARCO’s demand, 19 F.3d at 476-477, App. A at 7a.

On the Rule 39(b) issue, the court declared:

We have held that a district court’s discretion under

Rule 39(b) “is narrow ... and does not permit a court

to grant relief when the failure to make a timely demand

results from an oversight or inadvertence.” Lewis v.

Time, Inc., 710 F.2d 549, 556 (9th Cir. 1983). The

district court found that plainuff’s failure to timely de-

mand a jury trial “was clearly based on oversight, inad-

vertence, and inexcusable neglect, and these are not

valid grounds for granting a motion under Rule 39(b).”

We find no error.

19 F.3d at 477, App. A at 8a.

The court also followed long-established circuit precedent

to rule that Airfast’s negligence could not be imputed to

BMD. Under Tim v. American President Lines, 409 F.2d

385 (9th Cir. 1969), the Hopson/Sinkler doctrine does not

apply in the absence of a direct contractual link between the

2 Although there was substantial uncontradicted evidence tending to

show that BMD was directly negligent in Craig’s death, petitioner does

not ask this Court to review the district court’s holding to the contrary.

If this Court agrees that petitioner’s Rule 39(b) motion should have been

granted, however, petitioner may seek to have this issue tried before a

jury on remand. See infra 16 n.7.

employer and the negligent party. See 19 F.3d at 477-478,

App. A at 9a-10a.

REASONS FOR GRANTING THE PETITION

This case raises two important and recurring questions of

federal law, both of which have created difficulties for the

lower courts. On each issue, the court below—following

long-standing Ninth Circuit precedent—reached a conclusion

in direct conflict with the decisions of most other courts.

Each question is cleanly and independently presented, and the

relevant issues have been thoroughly considered by the lower

courts over the years. This case offers a suitable vehicle for

the Court to resolve both conflicts.

THE NINTH CIRCUIT, IN CONFLICT WITH

OTHER COURTS, HAS MISCONSTRUED

THE HOPSON/SINKLER DOCTRINE

The Jones Act, 46 U.S.C. App. § 688(a), gives injured

seamen the same rights that injured railway workers receive

under the Federal Employers’ Liability Act (“FELA”), 45

U.S.C. §§ 51-60. Thus an injured seaman can recover from

his or her employer for the injuries negligently inflicted by the

employer’s “officers, agents, or employees.” FELA § 1, 45

U.S.C. § 51. As this Court has explained, however, FELA

does not refer to “agents” in the narrow common-law sense.

Rather, “an accommodating scope must be given to the word

‘agents’ to give vitality to the standard governing the liability

of carriers to their workers injured on the job.” Sinkler,

supra, 356 U.S. at 330-331. Under Sinkler, an independent

contractor performing an employer’s operational activities is

treated as the employer’s “agent”—and its negligence is im-

puted to the employer—even if the requirements for common-

law agency have not been satisfied. In Hopson, supra, the

Court confirmed that Sinkler’s broad definition of “agents”

applies with equal force in a Jones Act case.

The Ninth Circuit recognizes that the Hopson/Sinkler

doctrine determines whether an independent contractor’s

negligence will be imputed to an employer under FELA or the

Jones Act, but it has rejected the rationale of this Court’s

opinions and narrowed the doctrine to require a direct con-

tractual link between the employer and the negligent party.

Starting with Tim v. American President Lines, supra, it has

refused to apply the doctrine when the negligent party per-

formed operational activities as part of an arrangement that

did not include a direct contractual link with the employer.

This interpretation of the Hopson/Sinkler doctrine is in

conflict with decisions in two other circuits and one state

supreme court which have imputed a third party’s negligence

to an employer in the absence of a direct contractual link. See

Central Gulf Steamship Corp. v. Sambula, 405 F.2d 291 (Sth

Cir. 1968); Schroeder v. Pennsylvania Railroad, 397 F.2d

452 (7th Cir. 1968); Salvail v. Great Northern Railway, 156

Mont. 12, 473 P.2d 549 (1970). It is also in tension with

decisions in two other circuit courts, which have either sug-

gested in dicta that a direct contract is unnecessary or have

imputed negligence to an employer without attaching any

weight to the existence of a direct contractual link. See

Carter v. Union Railroad Co., 438 F.2d 208 (3d Cir. 1971);

Smith v. Norfolk & Western Railway, 407 F.2d 501 (4th Cir.

1969), cert. denied, 395 U.S. 979 (1969); Carney v. Pitts-

burgh & Lake Erie Railroad, 316 F.2d 277 (3d Cir. 1963),

cert. denied, 375 U.S. 814 (1963).

This is an important, recurring issue in both maritime law

and railroad law that has led to confusion in the lower courts.

It is particularly important in the offshore drilling industry—

the context in which the present case arises—for drilling ven-

tures often involve a complex web of contractual relations.

1. The Hopson/Sinkler Doctrine. In Sinkler, an em-

ployee of one railroad was injured through the negligence of

another railroad’s workers. The injured worker’s employer

had contracted with the second railroad to perform switching

operations in the terminal where the accident occurred. The

injured employee brought suit under FELA on the ground that

his employer was responsible for the independent contractor’s

actions. The lower court, rejecting this theory, held that the

negligent railroad was not an “agent” of the employer. __

This Court reversed. It described FELA as “an avowed

departure from the rules of common law,” 356 U.S. at 329,

and concluded that a broader meaning of the term “agents”

was therefore appropriate, id. at 330-331. Under the cir-

cumstances, it was clear that the negligent workers “were, for

purposes of the FELA, as much a part of the [employer’s]

total enterprise as was the [injured worker].” Jd. at 331.

Therefore, “the corporate autonomy of the [independent

contractor], and its freedom from detailed supervision of its

operations by [the employer], are irrelevant inasmuch as the

[negligent workers were] engaged in furthering the opera-

tional activities of [the employer].” Jbid. This result was

justified because

it was the conception of this legislation that the railroad

was a unitary enterprise, its economic resources obli-

gated to bear the burden of all injuries befalling those

engaged in the enterprise arising out of the fault of any

other member engaged in the common endeavor. .. .

[JJustice demands that one who gives his labor to the

furtherance of the enterprise should be assured that all

combining their exertions with him in the common

pursuit will conduct themselves in all respects with

sufficient care that his safety while doing his part will

not be endangered.

Id. at 330. In short, this Court paid very little attention to the

precise contractual arrangements. The “corporate autonomy

was “irrelevant.” The holding was instead based on the broad

purposes of the Act, and the economic rationale that the em-

”?

ployer who benefits from an independent contractor’s efforts

should also be liable for the negligence of its workers.

On the facts of Sinkler, there was a direct contract

between the employer and the independent contractor. The

Court alluded to the contract in summarizing its holding:

“(When a railroad employee’s injury is caused in whole or in

part by the fault of others performing, under contract, opera-

tional activities of his employer, such others are ‘agents’ of

the employer within the meaning of § 1 of FELA.” Z7d. at

331-332. But there was no suggestion that the Court was

cutting back on its broad rationale, let alone that a direct

contract between the employer and the “agent” was required.

In Hopson, the employer/shipowner needed to take two ill

seamen from the docking area at a refinery in Trinidad to the

U.S. consulate 38 miles away. Rather than using one of the

carrier’s own vehicles, the master engaged a local taxi. En

route, one seaman was killed and the other injured due to the

negligence of the driver. In the ensuing action under the

Jones Act, the lower court held that the employer was not

responsible for the taxi driver’s negligence. This Court sum-

marily reversed. Although the opinion does not describe the

nature of the contract between the employer and the taxi

company, it does give the following justification for its

conclusion that Sinkler governs the case:

[I]t was [the employer]—not the seamen—which

selected, as it had done many times before, the taxi

service. [The employer]—the law says—should bear

the responsibility for the negligence of the driver which

it chose. This is because, as we said in Sinkler, “justice

demands that one who gives his labor to the furtherance

of the enterprise should be assured that all combining

their exertions with him in the common pursuit will

conduct themselves in all respects with sufficient care

that his safety while doing his part will not be

endangered.”

383 U.S. at 264 (quoting Sinkler, 356 U.S. at 330). The

details of contractual relationships made little difference to the

Hopson Court. What mattered, apart from the economic

rationale of Sinkler, was the selection process. The seamen

had little or no choice in the transaction because the employer

made the arrangements on their behalf.

2. The Hopson/Sinkler Doctrine in the Ninth Circuit.

The Ninth Circuit first addressed the Hopson/Sinkler doctrine

in Tim v. American President Lines, supra, where a seaman

was injured through the negligence of a crane operator em-

ployed by an independent stevedore loading and unloading

cargo from the vessel. Although loading and unloading cargo

was essential to the vessel’s mission, there was “no oral or

written contract” between the stevedore and the vessel owner.

409 F.2d at 388. (Presumably the stevedore worked under

contracts with the cargo owners, who, in turn, had direct or

indirect contracts with the vessel owner.) Qn this basis, the

Ninth Circuit concluded that the injured seaman could not

recover because his employer, the vessel owner, was not

responsible for the negligence that caused his injury.

Similarly, in the present case Craig was injured through

the negligence of Airfast’s pilot. Once again, the Ninth

Circuit has held that an injured seaman can not recover under

the Jones Act because his employer did not have a direct

contract with the negligent party, even though a chain of

contracts ties Airfast and its pilot to BMD. This result is

directly contrary to the rationales on which this Court relied

in both Hopson and Sinkler. Airfast, Hudbay, ARII, and

BMD were all “a part of the [Brinkerhoff-I’s] total enter-

prise.” Cf. Sinkler, 356 U.S. at 331. Craig “should [have

been] assured that all [who] combin[ed] their exertions with

him in the common pursuit w[ould] conduct themselves in all

respects with sufficient care that his safety while doing his

part w[ould] not be endangered.” Cf. id. at 330. And finally,

“ft was [BMD’s partner in the enterprise, with BMD’s ap-

a - SS EE

proval]—not [Craig]—which selected ... [Airfast].”. Cf

Hopson, 383 U.S. at 264.

3. The Hopson/Sinkler Doctrine in Other Courts. The

Ninth Circuit’s interpretation of the Hopson/Sinkler doctrine

is in direct conflict with decisions in two other circuits and

one state supreme court, which have imputed a third party’s

negligence to an employer in the absence of a direct contrac-

tual link. In Schroeder, supra, the Seventh Circuit (relying on

Hopson and Sinkler) reversed a decision in which the district

court refused to instruct the jury that a trucker’s negligence

should be imputed to an injured worker’s employer. 397 F.2d

at 458. Although there was a contractual chain connecting

the trucker to the employer (just as there is a chain of con-

tracts connecting Airfast and its pilot to BMD), there was no

direct contract between the employer and the person held to

be an agent. Without discussing the contractual relationship,

the Schroeder court explained:

There is no dispute that [the trucker] was engaged in

performing operational activities of the railroad when

[the employee was injured]. As a consequence, he was

an “agent” of the railroad within the meaning of FELA.

Ibid. If the Ninth Circuit had applied this test, Airfast and its

pilot would likewise be “agents” of BMD.

3 The Ninth Circuit may find some support for its position in Epling v.

M.T. Epling Co., 435 F.2d 732 (6th Cir. 1970), cert. denied, 401 U.S.

963 (1971). In this Jones Act case, the Sixth Circuit refused to impute a

barge owner’s negligence to the company unloading the barge because

“there was no contractual or other relationship between” them. 435 F.2d

at 735. Given the absence of any relationship between the employer and

the negligent third party, we feel this case is distinguishable from the

Ninth Circuit’s decisions, and more like the district court decisions

discussed infra at 13-15. If the Court disagrees with this characteriza-

tion, however, the intercircuit conflict is even broader than we claim.

In Central Gulf Steamship Corp. v. Sambula, supra, the

Fifth Circuit (relying on Hopson) held a vessel owner respon-

sible for the negligence of a doctor retained by the vessel’s

local agent to treat an injured seaman. 405 F.2d at 302. The

seaman, who had been injured while on shore leave, happened

to find the agent before anyone on the vessel was aware of the

injury. Although the employer did not select the doctor and

had no direct contract with the doctor, the Sambula court not

only characterized the transaction as one in which the ship

retained the doctor, it also rejected the suggestion that there

was a relevant distinction between the negligence of this doc-

tor and that of a doctor in the regular employ of the ship. /d.

at 302 n.7. The court concluded:

What was Dr. Lee if not the agent of [the employer]?

He was not engaged by [the seaman]; he was not a

volunteer; and he was not a legal Martian. In such

circumstances, it would tatter reality to say that there

was no agency.

Id. at 302. Had the Ninth Circuit taken this approach, the

result below would have been very different. Craig did not

engage Airfast. Nor was Airfast a volunteer or a legal

Martian. Airfast and its pilot were “agents” of BMD for

purposes of the Jones Act.

Finally, in Salvail, supra, a case very like Schroeder, the

Supreme Court of Montana (relying on Sinkler) imputed a

trucker’s negligence to the railroad that employed the injured

worker. Once again, there was a contractual chain connecting

the trucker to the employer (just as there is a chain of con-

tracts connecting Airfast and its pilot to BMD), but there was

no direct contract between the employer and the person held

to be an agent. The court easily concluded that Sinkler con-

trolled. 156 Mont. at 21,473 P.2dat555.

In addition to these circuit court and state supreme court

decisions in direct conflict with the Ninth Circuit, district

court decisions in other circuits are also in conflict. See, e.g.,

McLaughlin v. Sun Transport, Inc., 1986 AMC 1518 (D. Del.

1984) (imputing the negligence of a private hospital, which

treated seamen pursuant to a contract with the Public Health

Service, to a shipowner-employer under Hopson without any

indication of a contractual relationship between the hospital

and the shipowner); Mounteer v. Marine Transport Lines,

463 F. Supp. 715 (S.D.N.Y. 1979) (imputing the negligence

of an Egyptian taxi driver chosen by the employer's shore

agent; the court discusses only the “operational activity”

requirement under Sinkler and Hopson, without mentioning

the absence of a direct contract). Standing alone, these

district court conflicts would not justify this Court’s exercise

of its discretionary jurisdiction. But when they are considered

in conjunction with the conflicts involving the Fifth and

Seventh Circuits and the Montana Supreme Court, they help

demonstrate both the serious nature of the problem and the

extent to which the Ninth Circuit has departed from the

generally accepted interpretation of Hopson and Sinkler.

The Ninth Circuit’s Hopson/Sinkler decisions are also in

tension with decisions in two other circuits, even if a direct

conflict is not obvious in the reported cases. In two Third

Circuit decisions, there was a contract between the employer

and the negligent party, but the court does not suggest that

this is important. See Carter, supra; Carney, supra. In

Smith, supra, the Fourth Circuit, in dicta, describes Sinkler as

holding that “[{t]he concept of ‘operational activity’” is “suffi-

cient alone to produce a finding of an agency relationship

within the meaning” of FELA. 407 F.2d at 502.

There are a few district court decisions outside the Ninth

Circuit that superficially appear to support the Ninth Circuit's

rule, for each of them rejects a Jones Act or FELA claim due

to the absence of a contract between the employer and the

negligent party.4 On closer examination, however, the cases

involve situations with no link at all between the employer

4 We would include Epling, supra, in this category. See supra 11 n.3.

and the negligent party. Furthermore, when the courts ex-

plain the rationales for their decisions, the explanations are

inconsistent with the Ninth Circuit’s approach. In Thomas v.

Grigorescu, 582 F. Supp. 514 (S.D.N.Y. 1984), aff'd without

opinion, 751 F.2d 371 (2d Cir. 1984), for example, the court

refused to impute a taxi driver’s negligence to the employer

when the injured employees had selected their own means of

transport between the station and their hotel.5 Although the

court declared that “{i]Jn the absence of ... a contract [be-

tween the negligent party and the employer], there is no basis

for liability under the FELA,” 582 F. Supp. at 517, the court

justifies this rule on the basis of the selection process:

[I]n contracting with a particular third party the carrier

forces its employees to work near or be served by the

third party. Because by virtue of its contract the

employer requires its employees to suffer the tender

ministrations of the third party, it can fairly be asked to

share the burden of lability if its contractually created

agent is careless. [The employees here], in contrast,

chose [the taxi] and their driver. Because the railroad

played no role in that selection, fairness does not favor

imposing liability on the railroad.

Id. at 518. This, of course, is essentially the rationale that this

Court found persuasive in Hopson. See 383 U.S. at 264. It

also points against the Ninth Circuit’s rule in the present case,

5 Broussard v. Marine Transport Lines, 369 F. Supp. 103 (E.D. Tex.

1974), is similar. The district court there refused to impute the negli-

gence of a truck driver who had picked up a hitchhiking seaman when

the seaman’s employer had no connection whatsoever with the truck or

its driver. Cf. Hamilton v. Marine Carriers Corp., 332 F. Supp. 223,

226-227 (E.D. Pa. 1971) (requiring a contractual relationship between

the employer and the negligent party, but suggesting that this require-

ment would be satisfied by a two-step contractual chain—from the ship-

owner/employer to the charterer, then from the charterer to the negligent

party).

for Craig did not choose Airfast. That choice was made by

BMD’s partners with BMD’s approval.

4. The Importance of Resolving the Conflict. This

Court has long recognized the danger in allowing employers

to escape their FELA or Jones Act responsibilities “by the

simple expedient of doing each other’s work,” Shenker v.

Baltimore & Ohio Railroad Co., 374 U.S. 1, 11 (1963), but

that is exactly what the Ninth Circuit allowed to happen here.

Airfast did BMD’s work, and as a result BMD escaped its

responsibilities under the Jones Act. Craig was denied the

special protection that Congress intended him to have, and

that this Court has jealously guarded.

The situation here arises whenever companies work to-

gether in complex contractual relationships. In offshore dril-

ling operations, such as the one in which Craig worked, com-

plex contractual relationships are the norm.® See, e.g., Baker

v. Raymond International, Inc., 656 F.2d 173, 175-177 (Sth

Cir. 1981), cert. denied, 456 U.S. 983 (1982). As Judge

Wisdom has observed, “oil exploration companies customarily

contract for all labor.” Spinks v. Chevron Oil Co., 507 F.2d

216, 225 (Sth Cir. 1975). But multiparty contracts are found

in many other contexts, including straight-forward chartering

transactions and the vessel unloading operation in Tim, supra.

desire to avoid Jones Act liability. As one recent authority explains:

Mining and petroleum operations are rarely conducted by a

single party. The risk and expense of the undertaking are frequently

so immense that a company finds it imprudent to accept sole respon-

sibility for operations. Often a consortium composed of several

companies is formed to obtain a concession or production sharing

agreement. If a single company receives such an agreement, it will

usually transfer some interest in the agreement to other industry

participants to spread the risk.

ERNEST E. SMITH ET AL., INTERNATIONAL PETROLEUM TRANSACTIONS

474 (1993).

In recent Terms, the Court has given its attention to the

definition of a Jones Act seaman—thus explaining to whom an

employer is responsible. See, e.g., Southwest Marine, Inc. v.

Gizoni, 502 U.S. __, 112 S. Ct. 486 (1991); McDermott

International, Inc. v. Wilander, 498 U.S. 337 (1991). This

case raises the mirror-image question: for whose actions is an

employer responsible? This question is equally important as a

general matter, and it is particularly important in the multi-

billion dollar offshore drilling industry. The Court should

grant certiorari and resolve the conflict to ensure that the

Jones Act remains the remedy that Congress intended for the

entire the country.

THE NINTH CIRCUIT, IN CONFLICT WITH OTHER

COURTS OF APPEALS, HAS IMPROPERLY

LIMITED THE DISTRICT COURT’S DISCRETION

UNDER RULE 39(b) OF THE FEDERAL RULES OF

CIVIL PROCEDURE

This case raises a second important and recurring question

of federal law, which is independent’ of the Hopson/Sinkler

issue. The circuits are hopelessly divided on the proper stan-

dard governing a district court’s exercise of its discretion un-

der FED. R. CIV. P. 39(b), which declares that a court “‘in its

discretion” may order a jury trial notwithstanding a party’s

failure to make a timely demand.

The Court of Appeals for the First Circuit identified the

conflict most clearly (in an opinion joined by Judge Breyer)

when it explained:

7 If this Court agrees with petitioner on the Hopson/Sinkler doctrine, it

can still reach the Rule 39(b) question in order to decide whether a jury

or the court should determine damages on remand. If the Court were to

affirm the Ninth Circuit on the Hopson/Sinkler issue, however, it could

still reach the Rule 39{b) question to determine whether petitioner was

entitled to a jury determination of BMD’s negligence. See supra 5 n.2.

Our review of how other courts have defined bounda-

ries of Rule 39(b) discretion reveals two different ap-

proaches.

The first approach, typified by Judge Friendly in Noo-

nan v. Cunard Steamship Co., 375 F.2d 69, 70 (2d Cir.

1967), narrows that discretion by requiring that the

moving party show something “beyond mere inadver-

tence.” Accord Lewis v. Time, Inc., 710 F.2d 549, 556-

57 (9th Cir. 1983) .... The second approach, es-

poused most clearly by the Fifth Circuit, narrows the

discretion in the other direction: “when the discretion of

the court is invoked ... , the Court should grant a jury

trial in the absence of strong and compelling reasons to

the contrary.” Swofford v. B & W, Inc., 336 F.2d 406,

409 (Sth Cir. 1964), cert. denied, 379 U.S. 962 ...

(1965); accord AMF Tuboscope, Inc. v. Cunningham,

352 F.2d 150, 155 (10th Cir. 1965) (reversing a denial

of a Rule 39(b) motion).

We are of the view that the discretion under Rule

39(b) is very broad and that the case would be very rare

indeed where a district court abused its discretion in

denying or granting a Rule 39(b) motion.

Rowlett v. Anheuser-Busch, Inc., 832 F.2d 194, 199-201 (ist

Cir. 1987).8 Thus the First Circuit identified a clear conflict

8 Other courts and commentators have also noted the intercircuit

conflict. See, e.g., Lewis v. Thigpen, 767 F.2d 252, 258 n.10 (Sth Cir.

1985); Washington v. New York City Board of Estimate, 709 F.2d 792,

799 (2d Cir. 1983) (Oakes, J., dissenting) (recognizing that the Second

Circuit view differed from “the broader view held by some other

courts”), cert. denied, 464 U.S. 1013 (1983); Walton v. Eaton Corp., 563

F.2d 66, 76 (3d Cir. 1977) (en banc) (Gibbons, J., dissenting); Raya v.

Maryatt Industries, 829 F. Supp. 1169, 1175 (N.D. Cal. 1993) (“The

Seventh Circuit ... takes a broader view of Rule 39(b) than does the

Ninth Circuit.”); Orlowski v. TRW, Inc., 765 F. Supp. 1277, 1278 (E.D.

Mich. 1991) (“[{T]he Sixth Circuit does not follow the Ninth Circuit's

rigid approach.”); Karol v. Bear Stearns & Co., 708 F. Supp. 199, 200-

between the Second/Ninth Circuit position and the Fifth/

Tenth Circuit position, but proceeded to adopt yet a third

position itself. The decision below is also in conflict with the

rule applied in the Fourth, Sixth, Seventh, Eighth, Eleventh,

and District of Columbia Circuits. This Court should grant

certiorari to resolve this eleven-circuit split.

1. The Position in the Second and Ninth Circuits.

The Second and Ninth Circuits have both taken positions that

severely restrict a district court’s discretion to grant a Rule

39(b) motion. As the court below held, “a district court’s

discretion under Rule 39(b) ‘is narrow ... and does not

permit a court to grant relief when the failure to make a

timely demand results from an oversight or inadvertence.’”’

19 F.3d at 477, App. A at 8a (quoting Lewis v. Time, Inc.,

supra, 710 F.2d at 556-557). See also, e.g., Blau v. Del

Monte Corp., 748 F.2d 1348, 1357 (9th Cir. 1984), cert.

denied, 474 U.S. 865 (1985); Beckham v. Safeco Insurance

Co. of America, 691 F.2d 898, 905 (9th Cir. 1982); Bell v.

Cameron Meadows Land Co., 669 F.2d 1278, 1285 (9th Cir.

1982); Chandler Supply Co. v. GAF Corp., 650 F.2d 983,

987 (9th Cir. 1980).

In truth, however, the Ninth Circuit has not narrowed the

district court’s discretion in these cases; it has rewritten Rule

39(b) to eliminate discretion completely. One panel candidly

admitted this when it wrote:

[The moving party] wrongly characterizes the District

Court’s decision as a failure to exercise discretion, -

201 (N.D. Ill. 1989) (“‘case law is split as to what constitutes a sufficient

excuse’” for untimely filing) (quoting G. Bauknecht GmbH v. Electronic

Relays, Inc., 569 F. Supp. 404, 415 (N.D. Ill. 1983)); 9 CHARLES ALAN

WRIGHT & ARTHUR R. MILLER, FEDERAL PRACTICE AND PROCEDURE

§ 2334, at 113 (1971) (“There is a wide divergence of view on how a

court should exercise its discretion on a motion under Rule 39(b).”’).

when, as we see the facts, the District Court had

virtually no discretion to exercise.

Mardesich v. Marciel, 538 F.2d 848, 849 (9th Cir. 1976) (per

curiam). Indeed, the district court below viewed this case as

one in which there was no discretion to exercise. Having

concluded that the “plaintiff's failure [to make a timely jury

demand] was clearly based on oversight, inadvertence, and

inexcusable neglect,” it held that “these are not valid grounds

for granting a motion under Rule 39(b),” App. C at 30a, with

no consideration of how it might have exercised any

discretion that the Ninth Circuit had left it.

Furthermore, the Ninth Circuit has taken a very broad

view of what constitutes “inadvertence.” In the decision

below, trial counse! was held to be inadvertent for failing to

predict the questionable interpretation of the Jones Act that

the Fifth and Ninth Circuits would later adopt. See also

Sutton v. Atlantic Richfield Co., 646 F.2d 407, 409 n.3 (9th

Cir. 1981) (finding counsel inadvertent for failing to predict

how an inter-circuit conflict would be resolved).? The net

result is that district courts in the Ninth Circuit apparently

have discretion to grant a Rule 39(b) motion only when there

has been an intentional decision to forego a jury trial; any-

thing else is “mere inadvertence.” Surely this result is absurd,

cf. William Goldman Theatres, Inc. v. Kirkpatrick, 154 F.2d

66, 69 (3d Cir. 1946) (denying a Rule 39(b) motion in part

because counsel had previously made a deliberate choice for a

bench trial); AM International, Inc. v. Eastman Kodak Co.,

648 F. Supp 506, 509 (N.D. Ill. 1986) (same), but the alterna-

9 Even the Second Circuit does not take such an extreme view of “inad-

vertence.” See, e.g., Cascone v. Ortho Pharmaceutical Corp., 702 F.2d

389, 393 (2d Cir. 1983) (finding “more than mere inadvertence” when a

lawyer filing a state court action was unfamiliar with federal procedures

on removal); see also Davidson Pipe Co. v. Laventhol & Horwath, 125

F.R.D. 363, 371 (S.D.N.Y. 1989) (distinguishing “excusable erroneous

reliance” on another party’s jury demand from “inadvertence’’).

tive conclusion is that Rule 39(b) is a dead letter in the Ninth

Circuit.

The Second Circuit has similarly rewritten Rule 39(b) to

deny discretion to its district courts. In the seminal case,

Noonan, supra, Judge Friendly explained:

Defendant has cited eighteen reported decisions by

district courts within this circuit to the effect that mere

inadvertence in failing to make a timely jury demand

does not warrant a favorable exercise of discretion

under Rule 39(b), and plaintiff apparently has found

none to the contrary either here or elsewhere. The

effect of such a continued and consistent course of

decision is to narrow the allowable scope of discretion;

the area open to the judge’s discretion has shrunk to

determining whether the moving party’s showing be-

yond mere inadvertence is sufficient to justify relief. . . .

[T]he settled course of decision ha[s] placed a gloss

upon the Rule which a judge c[an] no more disregard

than if the words had appeared in the Rule itself.

375 F.2d at 70. Although the Second Circuit has relaxed this

view in the narrow category of cases that have been removed

from state court, see, e.g., Cascone v. Ortho Pharmaceutical

Corp., 702 F.2d 389, 392-393 (2d Cir. 1983),!° Noonan

continues to represent the law of the Second Circuit in cases

(such as the present) that were originally filed in federal court,

see, e.g., Bellmore v. Mobil Oil Corp., 783 F.2d 300, 307 (2d

Cir. 1986); Cascone, supra, 702 F.2d at 393.

2. The Position in Other Circuits. Contrary to the

suggestion in Noonan, supra, in most circuits a district court

does have the discretion to grant a Rule 39(b) motion even in

cases of mere inadverience. As the First Circuit recognized in

10 The Ninth Circuit has rejected even this narrow relaxation of its strict

view. See Lewis v. Time, Inc., supra, 710 F.2d at 557.

Rowlett, supra, some circuits create a presumption in favor of

granting a Rule 39(b) motion unless the non-moving party

demonstrates “strong and compelling reasons” to deny it.

And in most circuits a district court has broad discretion that

should be exercised in light of a wide range of factors. Under

the facts in this case, petitioner’s Rule 39(b) motion should

have been granted applying the standards announced in the

First, Fourth, Fifth, Sixth, Seventh, Eighth, Tenth, Eleventh,

and District of Columbia Circuits.

(a) The Fifth and Tenth Circuits. The Fifth and Tenth

Circuits have both announced a presumption in favor of

granting a Rule 39(b) motion unless the non-moving party can

demonstrate “strong and compelling reasons” to deny it. The

Fifth Circuit first adopted this presumption in Swofford,

supra, relying in large measure on the desire to protect the

right to a jury trial, “a basic and fundamental feature of our

system.” 336 F.2d at 409. And since Swofford, the Fifth

Circuit has found a district court’s denial of a Rule 39(b)

motion erroneous in at ieast four cases.4! See Daniel Inter-

national Corp. v. Fischbach & Moore, Inc., 916 F.2d 1061,

1064-66 (Sth Cir. 1990); Lewis v. Thigpen, 767 F.2d 252,

257-259 (Sth Cir. 1985); Pinemont Bank v. Belk, 722 F.2d

11 The Fifth Circuit has also said, in a partial retreat from Swofford, that

“{iJt is not an abuse of discretion by a District Judge to deny a Rule 39(b)

motion, however, when the failure to make a timely demand for a jury

trial results from mere inadvertence on the part of the moving party.”

Bush y. Allstate Insurance Co., 425 F.2d 393, 396 (Sth Cir. 1970), cert.

denied, 400 U.S. 833 (1970). See also, e.g., Farias v. Bexar County

Board of Trustees for Mental Health Mental Retardation Services, 925

F.2d 866, 873 (Sth Cir. 1991), cert. denied, 502 U.S.___, 112 S. Ct. 193

(1991); O’Malley v. United States Fidelity & Guaranty Co., 776 F.2d

494, 502 (Sth Cir. 1985) (per curiam). But even this standard is in con-

flict with the position of the Second and Ninth Circuits, for district

courts in the Fifth Circuit retain the discretion to grant (or deny) a Rule

39(b) motion in cases of mere inadvertence. See, e.g., Carr v. Wal-Mart

Stores, Inc., 138 F.R.D. 80, 82 (M.D. La. 1991).

232, 235-238 (Sth Cir. 1984); Cox v. CH. Masland & Sons,

607 F.2d 138, 144 (Sth Cir. 1979).

These post-Swofford decisions illustrate why petitioner’s

motion should have been granted under the Fifth Circuit

standard. In Daniel International Corp., for example, the

court attached primary weight to the fact that the case had

been carried on the jury docket for almost seven months

before the district court’s decision to remove it. 916 F.2d at

1064-65. (Here, the case was on the jury docket for eight

years before the district court removed it.) The Daniel court

also attached some weight to the fact that the case was “the

sort usually tried to a jury.” Jd. at 1064. (If anything, the

personal injury action here is even more clearly “the sort

usually tried to a jury.” See infra at 24.)

In Pinemont Bank, supra, plaintiff's counsel mistakenly

checked the box on the complaint’s cover sheet indicating

that a jury demand had been made. 722 F.2d at 235. As a

result, the court thought it was a jury case until the pretrial

conference, and the clerk marked the docket sheet accord-

ingly. Id. at 236. The defendant, who had also believed it

was a jury case, filed a Rule 39(b) motion after the pretrial

conference, id. at 237, just as petitioner did below. Although

the Fifth Circuit recognized that the defendant should have

reviewed the pleadings to see if there was a jury demand, it

nevertheless held that the district court abused its discretion in

denying the defendant’s motion. Jd. at 238.1? And the factors

on which the court relied point just as strongly in favor of

petitioner’s motion in the present case. The district court

below, however, was never permitted to consider the factors

that proved dispositive in these Fifth Circuit cases.

The Rowlett court noted the Tenth Circuit’s adoption of

the Swofford standard in AMF Tuboscope, Inc. v. Cunning-

12 The First Circuit, in an opinion joined by Judge Breyer, specifically

endorsed Pinemont Bank as “a well-reasoned precedent.” Moores v.

Greenberg, 834 F.2d 1105, 1109 (1st Cir. 1987).

ham, supra, which provides another good illustration of

why petitioner’s motion should have been granted under the

standards employed outside of the Second and Ninth Circuits.

As in Daniel International Corp., Pinemont Bank, and the

present case, AMF Tuboscope had been listed on the jury

docket. 352 F.2d at 152. As in the present case, the district

court sua sponte removed the case from the jury docket and

denied a Rule 39(b) motion. Jd. at 155. On appeal, the Tenth

Circuit noted that “[t]he orderly business of the court would

not have been disturbed by a jury trial” because the case had

already been on the jury docket. Jbid. In the absence of

“strong and compelling reasons to the contrary,” the Rule

39(b) motion should have been granted.

(b) The Eleventh Circuit. The Eleventh Circuit has also

declared its adherence to Swofford. Parrott v. Wilson, 707

F.2d 1262, 1267 (11th Cir. 1983), cert. denied, 464 U.S. 936

(1983). The Parrott court went beyond Swofford, however,

and looked to earlier district court decisions to formulate a

“five-part balancing test,” Akin v. PAFEC Ltd., 991 F.2d

1550, 1564 n.19 (11th Cir. 1993), to aid the district courts in

the exercise of their discretion:

The district courts have broad discretion when con-

sidering Rule 39(b) motions and often freely grant such

motions after considering (1) whether the case involves

issues which are best tried to a jury; (2) whether

granting the motion would result in a disruption of the

court’s schedule or that of an adverse party; (3) the

degree of prejudice to the adverse party, (4) the length

of the delay in having requested a jury trial; and (5) the

reason for the movant’s tardiness in requesting a jury

trial.

13 See also, e.g., Green Construction Co. v. Kansas Power & Light Co.,

1 F.3d 1005, 1011 (10th Cir. 1993).

707 F.2d at 1267. This test has also been recognized in other

circuits. See, e.g., Daniel International Corp., supra, 916

F.2d at 1064; Moody v. Pepsi-Cola Metropolitan Bottling

Co., 915 F.2d 201, 207 (6th Cir. 1990); Karol v. Bear

Stearns & Co., 708 F. Supp. 199, 200 (N.D. Ill. 1989).

Applying the Parrott test illustrates why petitioner’s mo-

tion should have been granted under Eleventh Circuit stan-

dards. The first factor points very strongly in petitioner's

favor, for personal injury cases are routinely tried to a jury.

See, e.g., Cascone, supra, 702 F.2d at 392; Higgins v. Boeing

Co., 526 F.2d 1004, 1007 (2d Cir. 1975) (per curiam);

Wysowski v. Sitmar Cruises, 127 F.R.D. 446, 449 (D. Conn.

1989).

The second and third factors also point in petitioner’s

favor. Because the case was carried on the jury docket for so

long, the court and the defendants were already prepared for

and expecting a jury trial. There would have been no dis-

ruption or prejudice. See, e.g., Daniel International Corp.,

supra, 916 F.2d at 1064; Higgins, supra, 526 F.2d at 1007."

The fourth factor may seem to cut against petitioner's

case, but the real issue should be the length of the delay

between the district court’s announcement that this was not a

jury case and the request for Rule 39(b) relief. Petitioner can

hardly be blamed for delay during the period when the case

was on the jury docket and everyone treated it as a jury case.

See Daniel International Corp., supra, 916 F.2d at 1064-65.

Petitioner requested Rule 39(b) relief shortly after the district

court transferred the case to the non-jury docket and almost

six months before the trial in fact began.

14 Although defendants may object to facing a jury in a personal injury

action, this is not the type of “prejudice” that is relevant in this context.

See, e.g., Davidson Pipe Co. v. Laventhol & Horwath, 125 F.R.D. 363,

372 (S.D.N.Y. 1989) (distinguishing “prejudice” from “the ‘windfall’

benefit” a defendant might receive if a jury trial is denied). In any event,

respondents raised no serious claim of prejudice below.

Finally, the fifth factor involves petitioner’s explanation

for her failure to make a timely jury demand. The courts

below (consistent with Ninth Circuit precedent) characterized

her failure as “mere inadvertence,” but in the circumstances it

was excusable. Petitioner did not demand a jury trial because

her trial counsel believed she could rely on ARCO’s timely

demand under Rule 38. The district court held this reliance

unjustified on the ground that a Jones Act defendant—

according to Rachal v. Ingram Corp., 795 F.2d 1210 (Sth

Cir. 1986)—is not entitled to a jury trial. We believe the Fifth

Circuit’s view is erroneous,'5 and thus the district court’s

reliance was unjustified. But even if the Fifth Circuit were

correct, petitioner should not be penalized for failing to

predict this questionable result three years in advance.

Although the Jones Act was “not happily worded,” Pana-

ma Railroad Co. v. Johnson, 264 U.S. 375, 384 (1924), this

Court explained over seventy years ago that it gives a seaman

the choice of bringing an action “on the common-law side of

the courts,—that is to say, through proceedings in personam

according to the course of the common law,” id. at 388, or

“on the admiralty side of the court,” id. at 391. This is the

“election” to which the statute refers. If the seaman proceeds

on the law side, the right to a jury trial follows “as an inci-

dent” of the choice. Jd. at 391. But if the case is filed on the

admiralty side, “the issues will be tried by the court.” Jbid.

Thus the shorthand practice has developed of saying the Jones

Act plaintiff has the right to choose a jury or a bench trial.

The shorthand is accurate for some purposes, but the real

choice is made when deciding how the case is filed. When a

1S Petitioner does not seek independent review of the conclusion that a

defendant in a Jones Act case is not entitled to a jury trial. The issue has

not yet generated an intercircuit conflict (at least in the reported cases),

and it has rarely caused problems in the lower courts. Thus we recog-

nize that this Court’s review of the issue would not be justified outside of

the Rule 39(b) context.

case is brought on the law side, relying on the district court’s

federal question jurisdiction, 28 U.S.C. § 1331, it is treated in

the same way as any other federal question case. Under the

express language of the statute, as well as under this Court’s

Seventh Amendment jurisprudence, see, e.g., Curtis v. Loe-

ther, 415 U.S. 189 (1974) (unanimously holding a defendant

entitled to demand a jury trial), any party should be free to

make a jury demand. At the very least, petitioner was entitled

to rely on this pre-Rachal understanding of the law.'®

District of Columbia Circuits. In Rowlett, supra, the First

Circuit declared its support for a very broad standard in which

the district courts have near total discretion to grant or deny

Rule 39(b) motions. 832 F.2d at 200. The Rowlett court did

not explicitly offer any guidance to the district courts in exer-

cising this wide discretion, but it did cite the following pas-

sage from the field’s most respected treatise:

[Decisions [taking a restrictive view] seem to place the

emphasis in the wrong place. Technical insistence upon

imposing a penalty for default by denying a jury trial is

not in the spirit of the rules. The rules do not limit the

court’s discretion in ordering a jury in cases in which

there would have been a right to jury trial.

9 CHARLES ALAN WRIGHT & ARTHUR R. MILLER, FEDERAL

PRACTICE AND PROCEDURE § 2334, at 115 (1971) (footnotes

omitted). Professors Wright and Miller continue:

The court ought to approach each application under

Rule 39(b) with an open mind and an eye to the factual

situation in that particular case, rather than with a fixed

16 Even if petitioner’s reliance were not justified, the worst that could be

said is that her trial counsel was inadvertent. (There is no suggestion

that she deliberately waived a jury!) And mere inadvertence is not dis-

positive except in the Second and Ninth Circuits.

policy against granting the application or even a precon-

ceived notion that applications of this kind are usually to

be denied.

Id. at 116.

In addition to the First Circuit, the open-ended approach

advocated by Professors Wright and Miller has been adopted

in the Seventh!” and Eighth!8 Circuits. A similar open-ended

approach has been adopted in the Fourth,!? Sixth,” and Dis-

trict of Columbia”! Circuits. In our view, Parrott correctly

identified factors that would be relevant in this case under the

Wright & Miller or a similar open-ended approach, and thus

the result should have been the same in these circuits as under

Parrott. Moreover, Professors Wright and Miller recognize

that denying a jury trial for a technical default “is not in the

spirit of the rules.” 9 WRIGHT & MILLER, supra, § 2334, at

115. But in any event, there is a direct conflict here because

the district court did not consider any factors, or exercise

17 See Merritt v. Faulkner, 697 F.2d 761, 767 (7th Cir. 1983), cert. de-

nied, 464 U.S. 986 (1983).

18 See Littlefield v. Fort Dodge Messenger, 614 F.2d 581, 585 (8th Cir.

1980), cert. denied, 445 U.S. 945 (1980); see also In re United Missouri

Bank of Kansas City, N.A., 901 F.2d 1449, 1450 n.5 (8th Cir. 1990) (en-

dorsing grant of Rule 39(b) motion under Littlefield standards in In re

Kroh Bros. Development Co., 198 B.R. 710 (Bkricy. W.D. Mo. 1989)).

19 See McCray v. Burrell, 516 F.2d 357, 371 (4th Cir. 1975) (en banc);

General Tire & Rubber Co. v. Watkins, 331 F.2d 192, 197 (4th Cir.

1964), cert. denied, 377 U.S. 952 (1964); see also Justice v. Pennzoil

Co., 598 F.2d 1339, 1345 (4th Cir. 1979).

20 See Moody, supra, 915 F.2d at 207; Kitchen v. Chippewa Valley

Schools, 825 F.2d 1004, 1013 (6th Cir. 1987); see also Orlowski v.

TRW, Inc., 765 F. Supp. 1277, 1278-79 (E.D. Mich. 1991).

21 See May v. Melvin, 141 F.2d 22 (D.C. Cir. 1944); see also FDIC v.

Cafritz, 770 F. Supp. 28, 30 (D. D.C. 1991); ; Hiotis v. Sherman Distrib-

utors of Maryland, Inc., 607 F. Supp. 217, 219 (D. D.C. 1984); Tavou-

lareas v. Piro, 93 F.R.D. 11, 14-15 (D. D.C. 1981).

discretion under any test. The Ninth Circuit has denied its

district courts the discretion that Rule 39(b) grants them.

In sum, therefore, petitioner’s Rule 39(b) motion should

have been granted under the standards of the First, Fourth,

Fifth, Sixth, Seventh, Eighth, Tenth, Eleventh, and District of

Columbia Circuits. The restrictive rule adopted in the Second

and Ninth Circuits is in direct conflict with the standards

applied in almost every other circuit.?4

3. The Importance of Resolving the Conflict. This

Court has long recognized the fundamental role of the jury in

our judicial system. See, e.g., Tull v. United States, 481 U.S.

412, 417 (1987); cf. Chauffeurs, Teamsters & Helpers Local

No. 391 v. Terry, 494 U.S. 558, 565 (1990) (plurality opin-

ion). It is true that the right to a jury trial can be waived more

easily than most rights. See FED. R. CIv. P. 38(d). But the

Rules balance easy waiver under Rule 38 with the district

court’s broad discretion to restore the right under Rule 39(b).

Without the safeguard of Rule 39(b), the fairness of Rule 38

and the efficiency of the Rules’ jury provisions would be

called into question. Petitioner does not ask this Court to

review a district court in the exercise of its discretion; she

asks the Court to consider an entire line of appellate authority

22 The Third Circuit has not offered clear guidance on this issue. See

Walton v. Eaton Corp., 563 F.2d 66, 77 (3d Cir. 1977) (en banc) (Gib-

bons, J., dissenting) (“we have not . . . taken a position on either of the

divergent approaches”). The district courts within the Third Circuit

have been inconsistent. Compare Lee v. Boyle-Midway Household

Products, Inc., 785 F. Supp. 533, 535-536 (W.D. Pa. 1992) (applying re-

strictive approach to deny a Rule 39(b) motion) with EEOC v. Britrail

Travel International Corp., 129 F.R.D. 116, 117 (D. N.J. 1989) (citing

WRIGHT & MILLER in granting a Rule 39(b) motion); Polay v. West Co.,

629 F. Supp. 899, 903 (E.D. Pa. 1986) (same); cf. Berda v. CBS Inc.,

800 F. Supp. 1272, 1274 n.1 (W.D. Pa. 1992) (“This judge’s invariant

practice has been simply to grant requests for jury trial on motion under

Fed. R. Civ. P. 39(b).”).

that left the district court with no discretion to exercise. This

case accordingly raises a fundamental issue at the very heart

of the practical operation of the jury system.

This case also offers the Court an ideal opportunity to

resolve the confusion plaguing lower courts on the standards

to apply in deciding Rule 39(b) motions. The Administrative

Office does not maintain a record of the number of Rule 39(b)

motions filed, but a simple computer search revealed over

fifty such cases decided by the district courts during 1991-

1993 that were reported on LEXIS. Because district court

rulings on motions are rarely reported,?* this total undoubt-

edly represents only the tip of the iceberg. Furthermore, the

issue regularly arises in every circuit in the country, and the

court of appeals in virtually every circuit has ruled on it. (In

some circuits, the published appellate decisions on the issue

number well into the double digits.)

Although the issues involved have been fully aired in this

extensive jurisprudence, massive confusion remains. The

Second and Ninth Circuits take the same general approach,

but there are significant differences between them. See, ¢.g.,

supra at 19-20 & nn.9-10. Most of the remaining circuits

take a very different approach, in direct conflict with the Sec-

ond and Ninth Circuits, but there are still differences among

them. See supra at 21-27. Lower courts and distinguished

commentators recognize the conflict. See supra at 17 & n.8.

Uniformity is particularly important here for reasons be-

yond those usually cited in this context (e.g., predictability,

efficiency, fairness in having like cases treated alike, avoiding

surprise, facilitating national transactions, preventing forum

shopping). The desire to achieve uniformity was one of the

principal reasons justifying the move from the Conformity Act

of 1872, ch. 255, § 5, 17 Stat. 196, 197 (requiring federal

courts to “conform, as near as may be,” to the procedures of

the states in which they sat), to the Rules Enabling Act of

23 The district court’s rulings in this case, for example, are unreported.

1934, ch. 651, 48 Stat. 1064, codified as amended at 28

U.S.C. § 2072 (authorizing the Supreme Court to prescribe

general rules of procedure), and the Federal Rules of Civil

Procedure. See, e.g., The “Rules of Civil Procedure for the

District Courts of the United States,” Adopted by the

Supreme Court: Hearings Before the House Committee on

the Judiciary, 75th Cong., 3d Sess. 2 (1938) (testimony of

Attorney General Homer Cummings); S. REP. No. 1174, 69th

Cong., Ist Sess. 1-2 (1926). This Court should resolve the

present conflict and provide much-needed guidance to the

lower courts so that Rule 39(b) can operate uniformly (as its

framers intended) and the right to a jury trial will be equally

available throughout the country.

CONCLUSION

The petition for a writ of certiorari should be granted.

Respectfully submitted.

JOHN O’ QUINN

Counsel of Record

O’ QUINN, KERENSKY,

MCANINCH & LAMINACK

2300 Lyric Center

440 Louisiana

Houston, Texas 77002

(713) 223-1000

Attorney for Petitioner

MICHAEL F. STURLEY

727 East 26th Street

Austin, Texas 78705

(512) 471-6318

Of Counsel

JULY 1994

APPENDIX A

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

No. 92-16962

D.C. No. CV 83-0604.

Ten Fong CRAIG, individually and as Administratrix

of the Estate of William Henry Craig deceased,

Plaintiff-Appellant,

ATLANTIC RICHFIELD CO., et al.,

Defendants-Appellees.

Appeal from the United States District Court

for the Northern District of California

William H. Orrick, District Judge, Presiding

Argued and Submitted,

February 11, 1994—San Francisco, California

Filed March 23, 1994

Before: Procter Hug, Jr., Jerome Farris and

Diarmuid F. O’Scannlain, Circuit Judges

OPINION

aaa

FARRIS, Circuit Judge.

Plaintiff Ten Fong Craig (widow of William H. Craig),

individually and as administratrix of the estate of William H.

Craig, appeals the district court’s judgment in favor of defen-

dants Atlantic Richfield Co., Brinkerheff Maritime Drilling

Corporation and Crowley Maritime Corporation. The district

court held that (1) plaintiff was not entitled to a jury trial, (2)

the Sinkler/Hopson doctrine did not apply to defendants

Brinkerhoff and Crowley, (3) defendants Brinkerhoff and

Crowley were not negligent, and (4) an airplane is not an

“appurtenance” of a vessel.

The district court had jurisdiction pursuant to the Jones

Act. 46 U.S.C. § 688. We have jurisdiction pursuant to 28

U.S.C. § 1291.

I. BACKGROUND

William Craig was killed in an airplane crash in Indonesia

while being transported to work in a DC-3 airplane operated

by Airfast, an aircraft charter company. At the time of the

crash, Craig was an employee of Brinkerhoff, the wholly

owned subsidiary of Crowley.

William Craig worked aboard the offshore drilling barge

Brinkerhoff-I, a vessel operated by Brinkerhoff and Crowley.

Brinkerhoff had entered into a drilling contract with Atlantic

Richfield Indonesia Inc. (not a defendant in this case), a

wholly owned subsidiary of ARCO. In February, 1981,

Atlantic Richfield Indonesia directed Brinkerhoff to move the

barge to a lease concession operated by Hudbay Oil. Atlantic

Richfield Indonesia and Hudbay executed an agreement pro-

viding that Brinkerhoff would perform drilling operations for

Hudbay. Pursuant to this agreement, the Brinkerhoff-I was

moved from the Java Sea to the Malaca Straits. Hudbay en-

tered into an Aircraft Charter Agreement with Airfast to

transport the employees of Brinkerhoff from Singapore to

Pekanbaru, Indonesia. From Pekanbaru, Brinkerhoff em-

ployees were flown via helicopter to the Brinkerhoff-I.

Five charter flights took place between Singapore and

Pekanbaru pursuant to the charter agreement between Airfast

and Hudbay. The first two flights left at 6:00 AM. One of

the two encountered severe fog while trying to land and was

forced to return to Singapore. Complaint was made by Wil-

liam Craig to Stephen Chia (in charge of crew changes and

crew transportation for Brinkerhoff) and Ric! ard Alex (gen-

eral drilling superintendent for Brinkerhoff) that the weather

conditions early in the morning were unfavorable for flying.

Alex testified that he called Airfast directly and requested that

the flights leave at 8:00 AM. The next two flights left at 8:00

AM. The fifth and fateful flight left at 6:00 AM, encountered

severe fog, and crashed while attempting to land.

Ten Fong Craig brought action against the named defen-

dants and numerous foreign defendants (who have since been

dismissed) in September, 1983. Shortly after the complaint

was filed, defendant ARCO demanded a jury trial. Plaintiff's

counsel states in an affidavit that he relied on ARCO’s jury

demand and assumed that the case would be tried before a

jury. However, prior to trial, the district court ruled that

ARCO did not have the right to demand a jury trial. Over

plaintiff's objections, a bench trial was held.

The district court held that ARCO was not a Jones Act

employer of William Craig and therefore not liable for his

death. Plaintiff does not dispute this holding. The court also

held that Brinkerhoff and Crowley were Jones Act employers,

but were (1) not liable under the Sinkler/ Hopson doctrine be-

cause Airfast was not their “agent” and (2) not directly negli-

gent. The court further held that the DC-3 aircraft could not

be considered an “appurtenance” of the vessel and that the

doctrine of unseaworthiness was therefore not applicable.

II. The Jury Question

Plaintiff contends that the district court erred by denying

her a trial by jury. She raises the following arguments: (1)

ARCO had the right to demand a jury trial, and she properly

relied on that demand; (2) even if ARCO did not have the

right to demand a jury trial, she was entitled to rely on AR-

CO’s demand; (3) the district court abused its discretion

under Federal Rule of Civil Procedure 39(b) by denying her a

jury trial; (4) she was entitled to rely on the jury demands of

parties in related cases; and, (5) defendants were estopped

from demanding a non-jury trial.

A. ARCO’s Jury Demand

The Federal Rules of Civil Procedure preserve a party’s

right to demand a jury trial if such right stems from the Sev-

enth Amendment or a federal statute. See Fed. R. Civ. P.

38(a). Plaintiff contends that ARCO had a nght to demand a

jury trial under the Seventh Amendment and pursuant to the

Jones Act, 46 U.S.C. § 688, and that she had the night to rely

on such demand under Federal Rule 39(a)(1).!

1. The Jones Act

The Seventh Amendment preserves a party’s right to a

jury trial as it existed at common law. See U.S. Const.

amend. VII. Since there was no common law right to a jury

trial in admiralty cases, the Seventh Amendment does not

apply to suits that invoke only a federal court’s admiralty

1. Rule 39(a)(1) provides that “when trial by jury has been demanded as

provided in Rule 38, the action shall be designated upon the docket as a

jury action. The trial of all issues so demanded shall be by jury unless

the parties . . . consent to trial by the court sitting without a jury.” Fed.

R. Civ. P. 39(a)(1).

jurisdiction. Waring v. Clarke, 46 U.S. (5 How.) 441, 460,

12 L. Ed. 226 (1847).

The Jones Act, however, confers a statutory right to a

jury trial. The Act provides that “any seaman who shall suffer

personal injury in the course of his employment may, at his

election, maintain an action for damages at law, with the right

of trial by jury....” 46 U.S.C. § 688. Plaintiff could have

demanded a jury trial had she made her demand within 10

days of serving her complaint. See Fed. R. Civ. P. 38(b).

Since plaintiff made no such demand, we must decide whether

the Jones Act confers a similar right on a defendant.

The Fifth Circuit has held that in actions where a federal

court’s sole basis for jurisdiction is under the Jones Act, only

the plaintiff has a right to demand a jury trial. See Rachal v.

Ingram Corp., 795 F.2d 1210 (Sth Cir. 1986); Linton vy.

Great Lakes Dredge & Dock Co., 964 F.2d 1480, 1489 n.16

(Sth Cir.) (citing Rachal), cert. denied, __ U.S. __, 113 S.

Ct. 467, 121 L. Ed. 2d 375 (1992). We agree. The plain

language of the Jones Act gives a plaintiff the option of main-

taining an action at law with the accompanying right to a jury

trial. The Act makes no mention of a defendant.?

2. Diversity of Citizenship

Plaintiff also argues that even if ARCO did not have a

right to demand a jury trial under the Jones Act, ARCO had a

2. Plaintiff argues that the Supreme Court’s decision in Fitzgerald v.

United States Lines Co., 374 U.S. 16, 10 L. Ed. 2d 720, 83 S. Ct. 1646

(1963) created a “quasi-constitutional” right to a jury trial under the

Seventh Amendment for Jones Act plaintiffs and defendants. The argu-

ment lacks merit. In Fitzgerald, the Court held that a plaintiff's Jones

Act right to a jury trial also could extend to a plaintiff's non-Jones Act

admiralty claims. The Court explained that while “the Seventh Amend-

ment does not require jury trials in admiralty cases, neither that Amend-

ment nor any other provision of the Constitution forbids them.” Jd. at

20.

Seventh Amendment right to a jury trial because the district

court had diversity jurisdiction over the parties pursuant to 28

U.S.C. § 1332. We have held that where a federal court has

an independent basis of jurisdiction over cases involving

admiralty claims, such as diversity of citizenship, both the

defendant and plaintiff have a right to demand a jury tral

under the Seventh Amendment so long as the suit is one that

could traditionally have been brought “at common law.” See

Wilmington Trust v. U.S. Dist. Court, 934 F.2d 1026 (9th Cir.

1991) (holding that defendant had right to jury trial in admi-

ralty case where defendant alleged counterclaims for which

there were independent bases of jurisdiction), cert. denied,

__ U.S. __, 112 S. Ct. 1578, 118 L. Ed. 2d 220 (1992);

Owens-Illinois, Inc. v. United States Dist. Court, 698 F.2d

967, 971-72 (9th Cir. 1983).

The district court ruled that under 28 U.S.C. § 1332

(c)(2),3 plaintiff is deemed a resident of California by virtue of

her husband’s residence there. Since ARCO, Brinkerhoff and

Crowley have principal places of business in California, the

district court ruled that diversity was absent. Even if plaintiff

is correct that she should be attributed Singaporean citizen-

ship due to the fact that the case was commenced prior to the

1988 amendment to 28 U.S.C. § 1332(c)(2),4 complete diver-

sity did not exist at the time ARCO made its jury demand. At

that stage in the proceedings, the case involved a single for-

eign plaintiff (assuming plaintiff is considered a citizen of Sin-

gapore) and numerous foreign defendants (in addition to U.S.

3. 28 U.S.C. § 1332(c)(2) provides that “the legal representative of the

estate of a decedent shall be deemed a citizen only of the same state as

the decedent.”

4. Prior to 1988, courts looked to whether the motive behind appointing

a particular representative for a decedent was to “manufacture” diversity

jurisdiction. See 14 Charles A. Wright, Arthur R. Miller & Edward H.

Cooper, Federal Practice & Procedure § 3640 (1985 & Supp. 1993);

Aanestad v. Air Canada, 382 F. Supp. 550 (C.D. Cal. 1974).

defendants), thereby defeating diversity. See Faysound Ltd.

y. United Coconut Chemicals, 878 F.2d 290, 294-95 (9th Cir.

1989) (presence of foreign plaintiff and foreign defendants

defeats diversity).

ARCO did not have a right to demand a jury trial under

the Jones Act or the Seventh Amendment.

B. Reliance on ARCO’s Jury Demand

Plaintiff argues that even if ARCO did not have the nght

to demand a jury trial, she had the right to rely on ARCO’s

jury demand pursuant to Rule 39(a)(1). We reject the argu-

ment.

Rule 39(a)(1) provides that “when trial by jury has been

demanded as provided in Rule 38, the action shall be desig-

nated upon the docket as a jury action. The trial of all issues

so demanded shall be by jury unless the parties . . . consent to

trial by the court sitting without a jury.” Fed. R. Civ. P. 39(a)

(emphasis added). Rule 38(a) only preserves the right to a

jury trial “as declared by the Seventh Amendment to the Con-

stitution or as given by a statute of the United States.” See

Fed. R. Civ. P. 38(a). Since ARCO had neither a constitu-

tional nor a statutory right to demand a jury trial, its jury

demand could not have been made “as provided in Rule 38”

for purposes of Rule 39. Plaintiff was therefore not entitled

to rely on ARCO’s jury demand.

C. The District Court’s Discretion under Rule 39(b)

Plaintiff contends that the district court abused its discre-

tion under Rule 39(b) by not granting her untimely demand

for a jury trial. Rule 39(b) provides that “notwithstanding the

failure of a party to demand a jury in an action in which such a

demand might have been made of right, the court in its dis-

cretion upon motion may order a trial by a jury of any or all

issues.” Fed. R. Civ. P. 39(b).

We have held that a district court’s discretion under Rule

39(b) “is narrow ... and does not permit a court to grant

relief when the failure to make a timely demand results from

an oversight or inadvertence.” Lewis v. Time, Inc., 710 F.2d

549, 556 (9th Cir. 1983). The district court found that plain-

tiffs failure to timely demand a jury trial “was clearly based

on oversight, inadvertence, and inexcusable neglect, and these

are not valid grounds for granting a motion under Rule

39(b).” We find no error.

D. Jury Demands by Plaintiffs in Related Cases

Plaintiff also asserts that she had the right to rely on the

jury demands of plaintiffs in related cases stemming from the

same plane crash. Plaintiff has cited no authority for this

proposition. The district court correctly concluded that the

argument does not make logical sense and fails of its own

weight.

E. Estoppel

Finally, plaintiff contends that defendants’ silence while

the case was treated as a jury case for over eight years should

estop them from opposing plaintiff's motion to. have the case

returned to the jury docket.

Our holding in Reid Bros. Logging Co. v. Ketchikan Pulp

Co., 699 F.2d 1292 (9th Cir.), cert. denied, 464 U.S. 916,

104 S. Ct. 279, 78 L. Ed. 2d 259 (1983) provides some sup-

port for the general proposition that a party’s course of con-

duct may prevent it from relying on procedural protections in

Rules 38 and 39. In Reid, the court did not allow a defendant

to object to the withdrawal of plaintiff's jury demand, holding

that where the defendant “unambiguously and determinedly

acted to defeat [plaintiff's initial] jury request, the only rea-

sonable conclusion is that [the defendant] was not relying on

the request and thus was not entitled to invoke the protection

of Rule 38(d).”5 Jd. at 1305.

Unlike the defendant in Reid, there is no indication that

defendants Brinkerhoff or Crowley took a position one way

or the other with respect to a jury trial; they did not “unam-

biguously and determinedly” consent to ARCO’s jury request.

See id. at 1305. They were not estopped from opposing

plaintiff's motion.

Furthermore, under Rule 39(a)(2), the court may, on its

own initiative, remove a case from the jury docket if it finds

that the right to a jury trial did not exist under a statute or the

Constitution. See Fed. R. Civ. P. 39(a)(2). That is what the

district court did.

III. The Hopson/Sinkler Doctrine

Plaintiff contends that the negligence of Airfast should be

imputed to Brinkerhoff and Crowley under the “Hopson/Sink-

ler” doctrine. In Hopson v. Texaco, Inc., 383 U.S. 262, 263,

86 S. Ct. 765, 766, 15 L. Ed. 2d 740 (1966), the Supreme

Court held that the Jones Act incorporates the standards of

the Federal Employers’ Liability Act, which “renders an em-

ployer liable for the injuries negligently inflicted on its em-

ployees by its ‘officers, agents, or employees.” Quoting an

earlier ruling in a FELA case, Sinkler v. Missouri Pac. R. Co.,

356 U.S. 326, 78 S. Ct. 758, 2 L. Ed. 2d 799 (1958), the

Court held that “when [an] . . . employee’s injury is caused in

whole or in part by the fault of others performing, under con-

tract, operational activities of his employer, such others are

‘agents’ of the employer within the meaning of ... FELA.”

Hopson, 383 U.S. at 264, 78 S. Ct. at 766.

5. Rule 38(d) provides, in pertinent part, that “[a] demand for trial by

jury made as herein provided may not be withdrawn without consent of

the parties.” Fed. R. Civ. P. 38(d).

10a

The district court ruled that since there was no contractual

relationship between Brinkerhoff or Crowley and Airfast,

plaintiff could only establish that Airfast was Brinkerhoff or

Crowley’s “agent” by presenting evidence that either Brinker-

hoff or Crowley exercised a sufficient amount of control over

Airfast. The court found that while Brinkerhoff and Crowley

could “request” changes in Airfast’s flight plans, “the ability

to ‘request’ a change without any authority to enforce that

request does not constitute control.”

In Tim v. American President Lines, Ltd., 409 F.2d 385

(9th Cir. 1969) we applied the Sinkler/Hopson doctrine. The

plaintiff in Tim was injured while acting in the course of his

employment as an electrician aboard the S.S. President Tyler.

The injury occurred as a result of the negligence of a crane

operating company, Matson Terminals, that was in the pro-

cess of unloading cargo from the vessel. The facts of the case

(which were not contested) established that the defendant

employer had not selected Matson to unload the terminals, it

had no oral or written contract with Matson, and it had no

ownership or other financial interest in Matson. Tim, 409

F.2d at 388. On these facts, we held that Matson could not

be considered the “agent” of the employer. Id.

Neither Brinkerhoff nor Crowley had a contractual rela-

tionship with Airfast, they did not select Airfast to transport

their employees, and they had no ownership or other financial

interest in Airfast. The district court considered one addi-

tional factor—whether Brinkerhoff or Crowley had “actual

control” over Airfast. It properly concluded that neither

Brinkerhoff nor Crowley had actual control over Airfast’s

flight plans.6 Airfast was not the “agent” of Brinkerhoff or

Crowley.

6. The district court also held that the transportation of the crew to the

Brinkerhoff-I was not an “operational activity” of the vessel. We do not

reach this issue.

SE Ee

lla

IV. Direct Negligence

Plaintiff argues that the district court erred in concluding

that Brinkerhoff and Crowley were not directly negligent for

William Craig’s death. The district court’s findings with re-

spect to negligence are reviewed for clear error. Vollendorff

v. United States, 951 F.2d 215, 217 (9th Cir. 1991).

Plaintiff argues Brinkerhoff and Crowley were negligent in

failing to delay the departure of the fifth and fateful flight,

and, if unable to delay the flight, in failing to remove their

employees from the flight. Plaintiff also contends that defen-

dants failed to provide plaintiff a safe place in which to work.

The district court found that Brinkerhoff and Crowley were

not negligent in allowing their employees to fly on Airfast’s

6:00 AM flight. This finding was based on trial testimony

establishing that the first flight that left at 6:00 AM proceeded

without mishap, and that a second flight that left at the same

time returned to Singapore after it encountered fog. The

court concluded that Brinkerhoff and Crowley had no “reason

to anticipate that the pilot would proceed to attempt an un-

safe landing.” This finding was not clearly erroneous.

Plaintiff also argues that defendants did not have prudent

policies in effect with respect to transportation of their em-

ployees. The district court relied on testimony establishing

“that Airfast was an established carrier used by major oil

companies in South East Asia.... Moreover, Airfast was

qualified, certified, and regulated by Indonesian and Singapo-

rean aviation officials.” The court concluded that Brinkerhoff

and Crowley “had no duty to investigate a third party’s choice

of a reputable and well-established carrier.” The record sup-

ports this conclusion.

Finally, plaintiff contends that Airfast was acting as a

common law “agent” of Brinkerhoff and Crowley, and that its

negligence should be imputed to them. The definition of

“agent” is broader under the Hopson/Sinkler doctrine than

under the common law. See Hopson, 383 U.S. at 264. Air-

12a

fast is neither an agent under the Hopson/Sinkler doctrine nor

under common law principles. Lack of control is pivotal.

V. Appurtenances

Finally, plaintiff contends that the district court erred in

granting summary judgment in favor of the defendants on

plaintiff's claims of unseaworthiness. We review a grant of

summary judgment de novo. Jones v. Union Pac. R. Co., 968

F.2d 937, 940 (9th Cir. 1992).

Plaintiff maintains that the plane transporting William

Craig should be considered an “appurtenance” of the Brinker-

hoff-I, and that the doctrine of unseaworthiness (or “unair-

worthiness”) is therefore applicable. We reject the argument.

The DC-3 aircraft transporting Mr. Craig to Pekanbaru did

not, and could not, land on the Brinkerhoff-I. It had no direct

relation to nor was it an appurtenance to the vessel.

VI. CONCLUSION

The district court properly held that plaintiff was not enti-

tled to a jury trial. The record supports the district court’s

findings that Airfast was not the “agent” of Brinkerhoff or

Crowley under the Hopson/Sinkler doctrine, and that Brink-

erhoff and Crowley were not directly negligent. Finally, the

district court properly granted summary judgment in favor of

the defendants on plaintiff's claims of unseaworthiness.

AFFIRMED.

13a

APPENDIX B

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA

No. C- 83-0604 WHO

TEN FONG CRAIG, individually and as Administratrix

of the Estate of WILLIAM HENRY CRAIG, Deceased,

Plaintiff,

VS.

ATLANTIC RICHFIELD CO., BRINKERHOFF

MARITIME DRILLING CORPORATION,

BRINKERHOFF MARITIME DRILLING P.T.E., LTD.,

BRINKERHOFF MARITIME DRILLING S.A., and

CROWLEY MARITIME CORPORATION,

Defendants.

[Filed Aug. 16, 1991]

MEMORANDUM OPINION AND ORDER

In this Jones Act damages action, pursuant to 46 U.S.C.

§ 688, defendants Brinkerhoff Maritime Drilling Corporation,

Brinkerhoff Maritime Drilling P.T.E., Ltd., and Brinkerhoff

Maritime Drilling, S.A. (collectively referred to as “BMD”’)

and Crowley Maritime Corporation (“Crowley”) move for

summary judgment! against plaintiff, Ten Fong Craig, the

1. On December 8, 1989, BMD brought a summary judgment motion

before Judge Schwarzer. Judge Schwarzer granted the motion in part

and held the remainder in abeyance pending further discovery. After the

parties took that discovery, BMD renewed its motion for summary judg-

l4a

widow of former BMD employee William Henry Craig

(“Craig”). For the reasons that follow, the Court denies

defendants’ renewed motion for summary judgment.

On April 28, 1981, Craig, a Jones Act employee of BMD

en route to his job on the Brinkerhoff-I, died when an aircraft

operated by P.T. Airfast Services (“Airfast”) crashed on

approach for landing at Simpang Tiga Airport, Pekanbaru,

North Sumatra, Indonesia. Indonesian authorities attributed

the crash to pilot error and heavy fog.

Because BMD’s liability to Craig depends in large part on

the contractual and working relationship between it, Airfast,

and the other involved corporate entities, a brief discussion of

those relationships follows.

In October 1979, BMD entered into a Day-Work Drilling

Contract with Atlantic Richfield Indonesia, Inc. (“ARIT’)

under which BMD agreed to operate the Brinkerhoff-I in

areas designated by ARII. In February 1981, ARII directed

BMD to move the Brinkerhoff-I from ARII’s Java Sea lease

concession to a Malacca Straits lease concession operated by

Hudbay Oil Ltd. (Hudbay). In March 1981, ARII and Hud-

bay agreed that BMD would perform drilling operations for

Hudbay as instructed by ARIL.

In its Day-work Drilling Contract with ARIT, BMD

agreed to provide “airline transportation originating outside of

Indonesia for [its] material, [pJersonnel and supplies to [a]rea

of [o]perations.” Daywork Drilling Contract, Schedule D,

q 48. BMD apparently arranged and paid for air transporta-

tion of its Brinkerhoff-I employees when the barge worked in

ment. This case was reassigned to Judge Walker, who recused himself,

and was then reassigned to this Court.

At the January 1991 hearing on this matter, plaintiff requested a

continuance so that she could amend her opposition papers to include

recently discovered information about the relationship betweeen BMD

and P.T. Airfast Services.

1Sa

the Java Sea, but stopped doing so when the Brinkerhoff-I

moved to the Straits of Malacca.

Because there were no regularly scheduled commercial

flights to Pekanbaru’s Simpang Tiga Airport, the airport most

convenient to Hudbay’s concession in the Straits of Malacca,

Hudbay entered into an aircraft charter agreement with Air-

fast for transportation of supplies and personnel to that air-

port. Hudbay entered into its agreement with Airfast in Feb-

ruary 1981, more than one month before Hudbay and ARII

executed their agreement for use of the Brinkerhoff-I. While

working on the Hudbay concession, BMD’s employees trav-

eled from Singapore to Pekanbaru on Airfast’s flights. But

even though Airfast flew BMD employees to and from the

Straits of Malacca, there was no direct contractual relation-

ship between BMD and Airfast; BMD operated under a con-

tract with ARII, which was under contract to Hudbay, which

hired Airfast.

IT.

BMD moves for summary judgment on plainuff's Jones

Act claim of negligence. Section 688 of The Jones Act allows

seamen or their estates to sue their employers and recover

damages for death or injuries they sustain in the course of

their employment. To recover under the Jones Act, a seaman

or his estate must show that the negligence of his employer,

or his employer’s officers, agents, or employees contributed

to his death or injury.

BMD argues that its officers did not act negligently and

that Airfast’s alleged negligence cannot be legally imputed to

BMD under maritime agency principles. BMD asserts that

Airfast was not its agent because BMD neither contracted

directly with nor controlled Airfast.

l6a

Plaintiff disputes this assertion and maintains (1) that a

contractual arrangement existed between Airfast and BMD

sufficient to make Airfast BMD’s agent for purposes of Jones

Act liability, and (2) that BMD controlled, and should be held

accountable for, Airfast’s actions. After reviewing the evi-

dence before it, the Court finds that a genuine issue of mate-

rial fact exists as to whether BMD had contractual ties with

or control over Airfast sufficient to make BMD liable for

Airfast’s negligence.

Absent a contractual or other relationship creating an

agency relationship between Airfast and BMD, BMD would

not be liable for Airfast’s negligence. The Supreme Court set

out the test for agency under the Federal Employers’ Liability

Act (“FELA”), 45 U.S.C. § 51, and the Jones Act, 46 U.S.C.

§ 688, in Sinkler v. Missouri Pacific Railroad Co., 356 U.S.

326 (1957), and Hopson v. Texaco, Inc., 383 U.S. 262 (1965)

(per curiam). In Sinkler the Supreme Court held that persons

“performing, under contract, operational activities of [an in-

jured employee’s] employer ... are ‘agents’ of the employer

within the meaning of § 1 of FELA.” Sinkler, 356 U.S. at

331-32. The Court expanded the agency doctrine in Hopson

to include parties conducting actions that are “‘a vital part of

the ship’s total operations.” Hopson, 383 U.S. at 264.

As plaintiff notes, it is implicit in Sinkler and Hopson that

a Jones Act employer cannot escape liability for injury arising

out of an activity done in furtherance of the operational activ-

ity of the vessel by delegating the performance of that activity

to another. Plaintiff argues that because getting the crew on

and off of the ship was essential to the ship’s operation, BMD

had a nondelegable duty to perform that function properly and

is, therefore, responsible for Airfast’s negligence. This argu-

ment fails because it assumes an overly broad definition of

“operational activities of the vessel.”

There is scant authority as to what constitutes actions

taken to further the “operational activities of a vessel.” Both

Sinkler and Hopson use the term, but neither defines it. In

17a

Sinkler, the plaintiff, an employee of the Missouri Pacific

Railroad, was injured as a result of the negligence of a Belt

Railway switching crew. The Court found that “[{w)hile en-

gaged in switching and handling [Missouri Pacific’s] cars and

trains about the terminal area, the Belt Railway employees on

the job were, for purposes of the FELA, as much a part of

(Missouri Pacific’s] total enterprise as was the petitioner

while engaged in his regular work on the [Missouri Pacific]

car” and that ‘“‘at the moment of the collision in the station

[petitioner] was engaged in furthering the operational activi-

ties of respondent.” 356 U.S. at 331. Thus, under Sinkler, a

railway or shipping line cannot escape FELA liability by hiring

third parties to operate its trains or ships.?

Hopson expanded “operational activities” to include stat-

utorily imposed obligations. That case dealt with injures

caused when a taxi crashed while transporting two ill sailors

to the United States Consul’s office in Port of Spain, Trini-

dad. Because federal law required that all sick American

seamen be taken to a United States Consul where arrange-

ments for their return to the United States could be made, the

trip at issue in Hopson

was a Vital part of the ship’s total operations. The ship

could not sail with these two men, nor could it lawfully

discharge them without taking them to the United States

Consul. Indeed, to have abandoned them would have

breached the statutory duty to arrange for their return to

the United States. Getting these two ill seamen to the

United States Consul’s office was, therefore, the duty of

respondent.

383 U.S. at 264.

2. Note that Hopson Court may have been persuaded in part by the close

relationship between Missouri Pacific and Belt Railway. The Missouri

Pacific contracted with Belt Railway, owned one half of Belt Railway’s

stock, and appointed one half of its directors.

18a

Thus, Hopson is factually distinct from this case. Unlike

the shipowner in Hopson, BMD had no statutory obligation

to provide transportation to and from shore for its crews.

“{A] shipowner has no duty to furnish transportation to and

from the ship to seamen granted shore leave when the ship is

anchored away from the dock.” Dixon v. Grace Lines, Inc.,

103 Cal. Rptr. 595, 602 (1977).

An action can be essential to the profitable operation of a

ship without furthering an “operational activity” of the vessel.

In Tim v. American President Lines, Ltd., 409 F.2d 385 (9th

Cir. 1969), a seaman sued his employer after he suffered a

serious injury caused in part by the negligence of a stevedore

unloading the ship’s cargo. The Ninth Circuit found that be-

cause the defendant shipper had not selected, contracted with,

or invested in the stevedore, the stevedore was not the ship-

per’s agent. More important, the court upheld a finding of no

liability against the ship owner even though the stevedore’s

actions were clearly critical to the ship’s successful operation.

Thus, the “operational activity” of a vessel excludes some

activities that further, and may even be essential to, the suc-

cessful operation of the ship.* Because the unloading of

cargo was as essential to the operation of the ship in Tim as

the rotation of the crew was to the Brinkerhoff-I, transporting

3. Note that operational activity receives a broader reading when a con-

tractual relationship exists between the shipping concern or railroad and

the negligent service provider; or the employees suffered injuries when

moving between job sites. Carter v. Union R.R. Co., 438 F.2d 208, 211

(3d Cir. 1971) (railroad liable for General Motor’s negligence in failing

to maintain safe conditions at parking lot on General Motors’ property

because “[t]he arrangement between the railroad and General Motors

providing for use by railroad employees of [General Motor’s] property

came within the operational activities of the railroad at the . . . job site”),

and Penn Central Corp. v. Checker Cab Co., 488 F.Supp. 1225, 1228

(E.D. Mich. 1980) (taxi taking railroad employees from one job sight to

another “is performing work which constitutes an operational activity of

the employer’) (dictum).

19a

crew members to a site near the ship is not an action taken in

furtherance of the ship’s operational activities as defined in

Tim.

Having found that, absent a contractual or other relation-

ship between the shipper and transportation provider, the

provision of transportation to a spot near a barge does not fall

within the Ninth Circuit’s definition of actions taken in fur-

therance of a ship’s operational activities, the question be-

comes whether the relationship between BMD and Airfast

renders BMD liable for Airfast’s alleged negligence.

As noted above, no direct contractual link existed be-

tween BMD and Airfast. Nevertheless, plaintiff has intro-

duced enough evidence to raise a genuine issue of material

fact as to whether Airfast acted as BMD’s agent. First, some

question exists as to whether BMD’s obligation to provide air

transportation services ended prior to the crash. The Day-

Work Drilling Contract between BMD and ARII stated that

BMD would provide all transportation originating outside In-

donesia. Craig’s fight originated in Singapore. BMD argues

that this contract was orally modified at a March 16, 1981,

meeting between representatives of ARII, BMD, and Hudbay

at which the Hudbay representative stated that his company

would be responsible for the transportation from Singapore to

Pekanbaru. Plaintiff notes that the letter memorializing the

oral agreement was written after the air crash and should be

discounted.*

There is also some, but not much, evidence that BMD

exercised some control over the scheduling of Airfast’s

flights. Plaintiff submits a declaration by Paul Grunke (a sur-

vivor of the crash and, according to BMD, a plaintiff in a

4. BMD asserts that its duty applied only to commercial transportation,

not charters and, therefore, did not obligate it to provide flights to

Pekanbaru. But a genuine issue of material fact exists as to whether

BMD’s agreement with ARII regarding transportation services applied

to the flight in question.

20a

separate cause of action against BMD), who concludes that

everything that was said and done by the supervisory person-

nel of Brinkerhoff demonstrated that Brinkerhoff exercised

full control over the flights from Singapore to Pekanbaru and

the returns of those flights.

Plaintiff also submits a deposition of Dick Alex, a former

project superintendent for BMD. Alex states that Airfast

temporarily changed the scheduled departure time for the

flight to Pekanbaru from 6:00 a.m. to 8:00 a.m. after he told

Airfast that heavy fog made a 6:00 a.m. flight unsafe and

asked them to schedule the flight for later in the morning.

Plaintiff uses the testimony of Grunke and Alex to show that

BMD (1) knew that early morning flights were unsafe, and (2)

had control over Airfast’s flight scheduling.S Plaintiff argues

that these statements raise a genuine issue of material fact as

to whether BMD exercised control over Airfast so as to make

Airfast BMD’s agent.

BMD asserts that plaintiff's evidence is not credible and

does not raise a genuine issue of material fact. BMD chal-

lenges the truthfulness of Grunke’s declaration: “Mr. Grun-

ke’s convenient recollection regarding Mr. Chia’s alleged

inability and failure to delay the flights is inconsistent with his

prior deposition testimony and highly suspect ....” Defen-

dants’ Reply in Support of Motion for Summary Judgment,

filed Dec. 14, 1990, at 12. BMD also points to the deposition

testimony of Leon Moore, retired vice president and general

manager of BMD, who stated that BMD had no control over

Airfast’s operation, had no contract with, or direct contact

with, Airfast, and did not schedule and was not financially

5. Plaintiff further states that Leon Moore testifies that BMD had the

authority and could stop the Airfast flight had they, thought it was un-

safe. This assertion is not supported by the record. Moore only stated

that BMD would use its best efforts to stop a flight it believed to be un-

safe.

2la

responsible for Airfast’s flights between Seletar Airport and

Pekanbaru.

Although the above-described evidence might by itself be

insufficient to raise a genuine issue of material fact, when read

in conjunction with statements made by BMD in another law-

suit, they do raise a factual dispute. In 1983, BMD and

Crowley filed an action in Singapore against Airfast for in-

demnity against the claims that the crash victims might bring

against BMD and Crowley. In support of BMD and Crow-

ley’s claim against Airfast, Steven Chia, administrator of

Brinkerhoff Maritime Drilling P.T.E., Ltd., averred that Air-

fast “entered into an agreement, viz, Aircraft Charter Agree-

ment, dated 23rd February 1981, with Hudbay Oil (Malacca

Straits) Limited, acting for itself and/or on behalf of other

parties including [BMD and Crowley] for the carriage of pas-

sengers for reward” and Airfast is “bound to indemnify [BMD

and Airfast] by virtue of the contractual relationship between

the parties.” Defendants’ Reply in Support of Motion for

Summary Judgment, Exh. L (Chia Affidavit) at {] 2(b), (h).

Although this Court realizes that the filing of the Singa-

pore action was a prophylactic measure taken to protect

against losses associated with an adverse ruling by it or some

other court, it nevertheless finds the language in the Chia

Affidavit troubling. Paragraph 2(b) of that affidavit clearly

raises the possibility that Hudbay acted on behalf of BMD

when it negotiated the air transportation contract with Airfast.

Drawing, as it must, all reasonable inferences in favor of the

nonmoving plaintiff, this passage, especially when considered

in light of the evidence introduced of BMD’s ability to affect

Airfast’s flight schedules, raises a real possibility that a con-

tractual relationship did exist between BMD and Airfast. If

such a contractual relationship existed, then BMD may well

be responsible for Airfast’s negligence.

fo)

Accordingly,

IT IS HEREBY ORDERED that defendants’ motion for

summary judgment is DENIED because of the genuine issue

of material fact hereinabove noted.

Dated: August 12, 1991.

/s/ _William H, Ornck

William H. Orrick

United States District Judge

23a

APPENDIX C

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA

No. C- 83-0604 WHO

TEN FONG CRAIG, individually and as Administratnix of the

Estate of WILLIAM HENRY CRAIG, Deceased,

Plaintiff,

VS.

ATLANTIC RICHFIELD CO., et al.,

Defendants.

[Filed Apr. 8, 1992]

MEMORANDUM OPINION AND ORDER

Plaintiff, Ten Fong Craig, the widow of William Henry

Craig, and administratrix of his estate, states claims under the

Jones Act, 46 U.S.C. § 688, alleging liability on the part of

defendants Atlantic Richfield Company (“ARCO”), Atlantic

Richfield Indonesia, Inc. (“ARII’),! Brinkerhoff Maritime

Drilling Corporation, Brinkerhoff Maritime Drilling Corpora-

tion, P.T.E., Ltd., Brinkerhoff Maritime Drilling Corporation,

1. ARII is a named defendant but has never been served by plaintiff.

ARCO and ARII were sued initially as employers under the Jones Act.

Plaintiff seeks to find ARCO liable under a doctrine whereby entities

may be considered Jones Act employers even though they are not the

named employers of plaintiffs. See Spinks v. Chevron Oil Co., 507 F.2d

216, 226 (Sth Cir. 1975). Based on that doctrine and a claim that ARII

is the alter ego of ARCO, plaintiff hopes to recover from ARCO.

24a

S.A., and Crowley Maritime Corporation (collectively

“BMD”), in causing the death of her husband, an employee of

BMD who died in an air crash while being transported to

work on BMD’s ship.2, BMD now renews iis motion for bi-

furcation of the liability and damages phases of the trial, and

plaintiff moves for a jury trial.* The parties dispute whether

this is or should be a jury trial, and whether or not plaintiff has

waived the right to same. Plaintiff also moves the court for

permission to use deposition testimony obtained in a related

state court proceeding, to dismiss foreign defendants Brinker-

hoff Maritime Drilling Corporation, P.T.E., Ltd., Brinkerhoff

Maritime Drilling Corporation, S.A., and for leave to file a list

of exhibits and expert credentials.4 For the reasons herein-

after stated, the Court denies plaintiff's motion for a jury trial,

denies BMD’s motion to bifurcate, grants plaintiff's motion to

use state court deposition testimony, and grants plaintiff's

motion for leave to file a list of exhibits and expert creden-

uals.

As a preliminary matter, the Court has discovered that the

second amended complaint was received on September 21,

1983, but never filed, and no motion for leave to amend the

original complaint was ever made. A first amended complaint

has never been filed or received. Nevertheless, none of the

present defendants answered the original complaint, all have

2. The aircraft was owned and operated by P.T. Airfast Corporation,

which is not a defendant in this action. BMD contracted with ARCO/

ARII to furnish and operate a drilling barge in areas designated by ARII.

ARII contracted with Hudbay Oil (Malaca) Ltd., which chartered the air-

plane.

3. Defendant ARCO joins BMD in its opposition to this motion.

4. This last motion is unopposed.

25a

answered and relied on the second amended complaint, and

the court will proceed as if it were filed in 1983. Thus, plain-

tiff shall file the second amended complaint forthwith.

Plaintiff presents three alternative avenues to support her

contention that this case was always intended to be and

should continue to be heard by a jury.5 First, she contends

that several other plaintiffs, in actions that were initially con-

solidated with this one, requested jury trials and, because

ARCO demanded a jury trial in its answer, her reliance on that

request cannot be abrogated. Next, plaintiff argues that all

parties have treated this action as a jury case for eight years

and, thus, have waived their right to object and/or are es-

topped from so objecting. Finally, she makes a formal de-

mand under Rule 39(b) of the Federal Rules of Civil Proce-

dure for a jury trial.

Plaintiff cites a variety of cases establishing the impor-

tance of the Seventh Amendment and the right to a jury tral.

The Court acknowledges the important constitutional nght

embodied in the Seventh Amendment. Nevertheless, because

this suit is based strictly on the Jones Act and invokes only

the Court’s maritime jurisdiction, the Seventh Amendment

does not apply, because, by its language and under the law,

the Amendment is only applicable to “suits at common law.”

U.S. Const. amend. VII (emphasis added).

Maritime cases are not common law cases and the Sev-

enth Amendment provides no support for plainuff's argu-

ments here. See, e.g., Fitzgerald v. United States Lines Co.,

374 U.S. 16, 20 (1963) (Seventh Amendment does not re-

quire jury trials in maritime or admiralty cases). Neither do

5. It bears short but notable mention that this problem is before the

Court because of plaintiff's failure to demand a jury trial eight years ago.

If that had been done, no objection could now be raised.

eR SS

26a

the Federal Rules of Civil Procedure create a right to trial by

jury in maritime cases other than that already established.

Fed. R. Civ. P. 38(e). Finally, although the Ninth Circuit has

not reached the issue, the Court follows cases holding “[iJn a

non-diversity action under the Jones Act... the seaman... is

entitled to a jury trial only by virtue of the Jones Act statutory

grant.” Rachal v. Ingram Corp., 795 F.2d 1210, 1213 (Sth

Cir. 1986).

Plaintiff's first claim that there should be a jury trial is that

other plaintiffs in cases originally consolidated with this case

requested a jury trial, and that ARCO’s original, timely re-

quest for a jury trial establishes valid grounds for reliance by

plaintiff. The “consolidation” plainuff discusses is a fiction.

Eleven separate actions were before Judge Schwarzer and

these cases were related, but not consolidated. Piaintiff pre-

sents no authority to support the notion that establishing one

of many related cases as a jury case grants all other parties in

the other related actions the right to jury triais without re-

quest, nor does it make any logical sense and, therefore, this

argument fails of its own weight.

Next, plaintiff relies on ARCO’s formal demand for a jury

because ARCO had no right to a jury trial, just as a defendant

in a nondiversity Jones Act case between two aliens has no

independent right to a jury trial. See id. On that basis, plain-

tiffs motion for a jury trial is not grounded in any constitu-

tional right, because no jurisdictional basis exists for this suit

except the Jones Act. This is an important factor for all fur-

ther considerations in this case. The Court is dealing with a

statutory, not a constitutional right, which must be accorded

6. The parties seem to be in accord that ARCO’s demand was made

within the proper time under the Federal Rules of Civil Procedure. The

only point of dispute here is whether ARCO had any right to make that

demand and/or whether plaintiff could have reasonably relied on that

demand.

27a

some lesser prerogative.” Therefore, BMD is correct in stat-

ing that plaintiff had no right to depend on ARCO’s request

for a jury trial. Plaintiff, of course, insists that ARCO’s de-

mand was properly made and her reliance on it is reasonably

placed, justifying a jury trial in this case. Plaintiff does not

adequately meet the problem of ARCO’s inability to request a

jury trial and, therefore, does not establish reasonable relli-

ance. This is a basic aspect of maritime law that plainuff can-

not overcome.

The parties concede Rachal is good law, but plaintiff at-

tempts to limit its holding in three ways, all of which are un-

successful. First, plaintiff moves to dismiss the foreign defen-

dants, thereby establishing complete diversity and jurisdiction

under that statute. The Court grants plaintiff's motion to dis-

miss these defendants, but this does not change things. AR-

CO’s jury trial demand was still ineffective when it was made

and the new assertion of diversity is incorrect and too late.

As BMD points out, a threshold problem with establishing

diversity here is the fact that plaintiff is deemed to be a resi-

dent of California by virtue of her husband’s residence, and

ARCO, Crowley, and Brinkerhoff Maritime Drilling Corpora-

tion all have principal places of business in California, defeat-

ing diversity. Moreover, subsequently arising diversity juris-

diction does not render a previously invalid jury demand pro-

per. See Rachal, 795 F.2d at 1217.

Second, plaintiff argues that because this case was

brought as a civil action, not pursuant to Rule 9(h) of the

Federal Rules of Civil Procedure, ARCO had a right to re-

quest a jury trial. Plaintiff relies on Johnson v. Penrod Drill-

ing Co., 469 F.2d 897 (Sth Cir. 1972), for the proposition

that if a case was pleaded as a civil action, defendants have a

7. Asa corollary, it should be noted that all of plaintiff's, and most of

BMD’, citations to cases discussing the Seventh Amendment right to a

jury, are off point to the extent that the statutory right is not as strongly

protected as the constitutional right.

28a

constitutional right to request a jury trial. This reading of

Johnson is inapt. Plaintiff there first alleged Jones Act and

diversity jurisdiction, then later withdrew the diversity allega-

tion. See Rachal, 795 F.2d at 1215 (discussing Johnson).

Based on the inviolate nature of the Seventh Amendment

right to jury trial, plaintiffs were unable to then transfer the

action to the nonjury docket. Rachal’s language is on point

here:

There is an important distinction between Johnson and

the case before us today, however: the Johnson plain-

tiffs alleged diversity jurisdiction as well as Jones Act

jurisdiction, while here Rachal has asserted only admi-

ralty and Jones Act jurisdiction.

Id. at 1216. In Johnson, the Seventh Amendment, via the

diversity statute, provided an independent constitutional basis

for a jury trial claim. No such independent basis existed here.

Third, plaintiff places undue reliance on the fact that the

case was placed on the civil docket from the beginning. This

argument is of little moment. In Rachal, “when the initial

complaint was filed and the plaintiff chose a civil action, the

only right to jury trial belonged to the plaintiff under the

Jones Act.” 795 F.2d at 1217 (emphasis added). Plaintiff

presents no authority for the notion that a Jones Act case,

with its right to jury tral limited to the plaintiff by statute,

transforms into a civil suit with Seventh Amendment jury

rights of all parties by virtue of placement on the civil docket.®

Plaintiff next argues that the parties have been proceeding

for eight years with the unwritten understanding that a jury

trial would occur, and that BMD’s past actions preclude it

8. As a back-up argument, BMD contends that dissimilar issues are

raised in the case against it as opposed to the case against ARCO and,

therefore, even if ARCO’s demand was construed as timely and proper,

it would not require a jury trial in the action against BMD. See Rosen v.

Dick, 639 F.2d 82 (2d Cir. 1980). Based on the discussion supra, the

Court does not reach this issue.

29a

from arguing otherwise. Plaintiff attaches an affidavit of her

former counsel who avers that it was always his understand-

ing that a jury trial was anticipated; cites a 1985 status con-

ference statement by plaintiff that a jury trial was expected;

reiterates the fact that ARCO requested a jury trial; and ar-

gues that BMD’s failure to raise the issue until now further

constitutes grounds for estoppel and waiver.

In response, BMD’s counsel submits a declaration stating

that he has conducted trial preparations on the assumption

that this would be a nonjury maritime case, and has always

proceeded on those grounds.

In general, “every reasonable presumption [should] be in-

dulged against the waiver of a trial by jury.” Reid Bros.

Logging Co. v. Ketchikan Pulp Co., 699 F.2d 1292, 1305

(9th Cir. 1983). Reid Bros., however, dealt with the consti-

tutional right to jury trial. Again, this is not a Seventh

Amendment case, and the constitutional right protection is

greater than the protection accorded the same right when it is

statutorily based. Plaintiff has not demonstrated sufficient

grounds for a finding of estoppel or waiver by BMD of the

right to object to this untimely request for a jury trial.

Rule 39(b) of the Federal Rules of Civil Procedure allows

the Court “in its discretion upon motion [to] order a trial by a

jury of any or all issues.” “That discretion is narrow, how-

ever, and does not permit a court to grant relief when the

failure to make a timely demand results from an oversight or

inadvertence.” Blau v. Del Monte Corp., 748 F.2d 1348

1357 (9th Cir. 1984); see also Rutledge v. Electric Hose &

Rubber Co., 511 F.2d 668, 675 (9th Cir. 1975) (discretion

“should rarely be exercised to grant a trial by jury in default of

a proper request for it”). Thus, the issue on this motion ap-

pears to revolve around the factual question regarding the

reasons for plaintiff's failure to demand a jury trial. The reso-

lution of this question should, however, be viewed through

the filter of Reid Bros.’ admonition that jury trial waivers are

construed strictly, and with the continued caveat that a stat-

30a

utory right to a jury trial does not equal a constitutional night

to jury trial, and that the former should be treated with a les-

ser degree of deference.

Here, plaintiff claims she relied on ARCO’s demand for

jury trial. If plaintiff's reliance were reasonable, failure to

make such a demand might not be sufficient to constitute

waiver. As discussed above, however, there was no reason-

able reliance. Moreover, it certainly would have been easy

enough to make the demand. This would have covered all

bases, either in the situation where ARCO’s demand was im-

proper or if the ARCO claim did not cover all issues as to

other defendants. The Court finds plaintiff's failure was

clearly based on oversight, inadvertence, and inexcusable

neglect, and these are not valid grounds for granting a motion

under Rule 39(b).9

II.

BMD contends that proof of a sufficient relationship “will

be a difficult and complicated task for the plaintiff,” and that

her case is moot if she cannot prove the relationship. (The

latter assertion remains undisputed.) Therefore, pursuant to

Rule 42(b) of the Federal Rules of Civil Procedure, BMD

moves for bifurcation of the liability and damages phases of

the trial, in the interests of expediting the tnal and potentially

eliminating the damages phase.

Rule 42(b) of the Federal Rules of Civil Procedure states:

The court, in furtherance of convenience or to avoid

prejudice, or when separate trials will be conducive to

expedition and economy, may order a separate trial of

any... Separate issue....

9. Plaintiff also moved for sanctions for the cost of bringing this motion.

Because the motion is decided in BMD’s favor, the motion is denied.

3la

“Bifurcation of the trial of liability and damage issues is well

within the scope of a trial court’s discretion under [Rule]

42(b).” Arthur Young & Co. v. Untied States Dist. Court,

549 F.2d 686, 697 (9th Cir. 1977). Because this will be a

bench trial, the Court will effectively bifurcate the case if li-

ability is not proven. On that basis, the Court denies the mo-

tion to bifurcate, finding that failure to bifurcate will not un-

duly prejudice BMD’s preparation of the case.

Il.

Finally, plaintiff moves to allow state court depositions

from earlier proceedings in this and a related case to be intro-

duced as evidence at trial under Rule 32(a) of the Federal

Rules of Civil Procedure. Rule 32(a) provides:

[A]ny part or all of a deposition . . . may be used against

any party who was present or represented at the taking

of the deposition or who had reasonable notice thereof,

in accordance with any of the following provisions:

(1)... for the purpose of contradicting or impeaching

the testimony of deponent as a witness, or for any other

purpose permitted by the Federal Rules of Evidence.

(3) ... for any purpose if the court finds ... (B) that

the witness is at a greater distance than 100 miles from

the place of trial or hearing, or is out of the United

States. ... or (E) upon application and notice, that such

exceptional circumstances exist as to make it desirable,

in the interests of justice and with due regard to the im-

portance of presenting the testimony of witnesses orally

in open court, to allow the deposition to be used.

Use of any such testimony will substantially serve judicial

economy. Many of the witnesses are outside the United

States or at least over one hundred miles away. BMD objects

to the use of such testimony on the grounds that the state

32a

court proceedings were not tried to conclusion and involved

different issues under law of different jurisdictions. Even as-

suming that is true, however, the depositions were sworn tes-

timony subject to cross-examination as required by Rule

32(a). Furthermore, this case will proceed as a bench trial.

Therefore, any improprieties or limitations in the deposition

testimony can be brought to the Court’s attention without

delay or prejudice. Grant of this motion in gencral does not

preclude BMD from moving to exclude specific portions of

the depositions under appropriate rules of evidence and pro-

cedure.

Accordingly,

IT IS HEREBY ORDERED that:

1. Plaintiff shall immediately file its second amended

complaint with the Court, and lodge a copy in chambers.

2. Plaintiff's motion for a jury trial is DENIED.

3. Plaintiff's motion to dismiss without prejudice foreign

defendants Brinkerhoff Maritime Drilling Corporation, S.A.

and Brinkerhoff Maritime Drilling Corporation, P.T.E., Ltd. is

GRANTED.

4. Defendants’ motion for bifurcation is DENIED.

5. Plaintiff's motion to use state court deposition testi-

mony is GRANTED.

6. Plaintiff's motion for sanctions is DENIED.

7. Plaintiff's motion for leave to file a list of exhibits and

expert credentials is GRANTED.

Dated: April 7, 1992.

/s/) William H. Orric]

William H. Orrick

United States District Judge

33a

APPENDIX D

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA

No. C- 83-0604 WHO

TEN FONG CRAIG, individually and as Administratrix of the

Estate of WILLIAM HENRY CRAIG, deceased,

Plaintiff,

VS.

ATLANTIC RICHFIELD CO., et al.,

Defendants.

[Filed Aug. 7, 1992]

FINDINGS OF FACT AND CONCLUSIONS OF LAW

In this Jones Act action, plaintiff, Ten Fong Craig (‘plain-

uff’), the widow of William Henry Craig (‘Craig’), seeks

damages from defendants, Brinkerhoff Maritime Drilling

Corporation (“BMD”), Crowley Maritime Corporation

(“Crowley”), and Atlantic Richfield Co. (“ARCO”) (together

“defendants’’), for Craig’s untimely death in an airplane crash.

In a Memorandum Opinion and Order filed April 8, 1992, this

Court resolved several pretrial issues. First, the Court de-

termined that this would be a bench trial because no proper

jury request had ever been filed. Second, the Court granted

plaintiff's motion to dismiss remaining foreign defendants.!

1. In addition, the Court denied defendants’ motion to bifurcate. Upon

further reflection, however, the Court has determined that bifurcation is

34a

Thus, the Court presided over a bench trial with the sole de-

fendants being BMD, ARCO, and Crowley.? For the reasons

hereinafter stated, the Court finds that none of the defendants

are liable for Craig’s death and that plaintiff shall receive no

damages from defendants.

Having analyzed the pleadings, the testimony, and the

exhibits submitted by the parties,* the Court makes the fol-

lowing findings of fact:

1. On April 28, 1981, an aircraft operated by P.T. Airfast

Services (“Airfast”) crashed on approach for landing at Sim-

pang Tiuga Airport, Pekanbaru, North Sumatra, Indonesia.

2. Indonesian authorities attributed the crash to pilot

error and heavy fog. Indeed, plaintiff's aviation expert, Jack

Parnell, testified that the pilot’s decision to attempt a landing

in those conditions was “totally unimaginable.”

3. Craig, a Jones Act* employee of BMD, died in the

crash.

4. Craig was en route to his job aboard the offshore

drilling barge Brinkerhoff-I. From the airport at Pekanbaru, a

helicopter was to transport the passengers to the oil drilling

proper. Therefore, the Court has conducted the liability phase of the

trial only.

2. Because BMD is Crowley’s wholly-owned subsidiary, the Court shall

hereinafter refer to both parties singularly as BMD.

3. Defendants have submitted a number of exhibits. Plaintiff does not

object to the admission into evidence of any of those exhibits. Plaintiff

has submitted voluminous exhibits as to many of which defendants ob-

ject. After review, the Court admits the following numbered exhibited

submitted by plaintiff: 1, 2, 14, 32, 33, 36, 42, 73, 90, 96, 97, 105, 154,

159 (admitted solely to prove that no action has been filed in Singapore),

163, 168, and 530.

4. Sections 688 et seq. of Title 46 of the United States Code shall here-

inafter be referred to generally as the “Jones Act.”

35a

barge Brinkerhoff-I, which was operating in the Straits of

Malacca in Indonesian waters.

5. On October 29, 1979, BMD entered into a Day-Work

Drilling Contract with Atlantic Richfield Indonesia Inc. (“AR-

II’) under which BMD agreed to operate the Brinkerhoff-I in

areas ARII designated (“Drilling Contract’). Pl.’s Ex. 1.

6. In February 1981, ARII directed BMD to move the

barge to a lease concession operated by Hudbay Oil (Malacca

Strait) Ltd. (“Hudbay”).5 BMD consented to this arrange-

ment.

7. On March 26, 1981, ARII and Hudbay executed an

agreement which provided that BMD would perform drilling

operations for Hudbay as instructed by ARII (“Use Agree-

ment”). Defs.’ Ex. F. Pursuant to this agreement, the Brink-

erhoff-I was moved from the Java Sea to a location in the

Malacca Straits. As a result of this move, arrangements for

transportation of crew members to the Brinkerhoff-I were

also altered.

8. Pursuant to an Aircraft Charter Agreement entered

into between Hudbay and Airfast on February 23, 1981, Hud-

bay chartered the aircraft to transport employees of BMD

between Singapore and Pekanbaru, Sumatra. Defs.’ Ex. A.

9. These changes resulted in Airfast transporting crew

members from Seletar airport in Singapore to the airport in

Pekanbaru, Indonesia.

10. The fateful crash was the fifth such flight from Singa-

pore to Pekanbaru. That flight left at approximately 6:00 a.m.

on the morning of April 28, 1981. Testimony at trial estab-

lished that the first such flight left at 6:00 a.m. on Apni 1,

1981, and proceeded without mishap. The second flight left

at the same time on April 8, 1981. This flight encountered

severe fog and the pilot returned the plane to Singapore to

5. Hudbay and its parent corporation Hudson Bay Oil & Gas Co., Ltd.

were dismissed from this action for lack of personal jurisdiction pursuant

to an Order filed October 12, 1983.

36a

wait for clear weather. The third and fourth flights left at

8:00 a.m. on April 15, 1981, and April 22, 1981, respectively,

and proceeded without mishap.

11. On August 16, 1991, this Court filed a Memorandum

Opinion and Order (“Order”) denying BMD’s and Crowley’s

motion for summary judgment. Although the motion was

denied, the Order narrowed substantially the theories of li-

ability to be explored at trial. The Court recognized in its Or-

der that the Jones Act had expanded the typical agency doc-

trine, as held in Sinkler v. Missouri Pacific Railroad Co., 356

U.S. 326 (1957). Sinkler held that persons “performing,

under contract, operational activities of [an injured em-

ployee’s] employer ... are ‘agents’ of the employer within

the meaning of § 1 of FELA [and, therefore, under the Jones

Act as well].” Jd. at 331-32. In the Order, this Court found

that “absent a contractual or other relationship between the

shipper {BMD] and the transportation provider [Airfast], the

provision of transportation to a spot near a barge does not fall

within the Ninth Circuit’s definition of actions taken in fur-

therance of a ship’s operational activities.” Order at 7-8. The

Court determined that there was a fact question concerning

whether any such “contractual or other relationship” existed

between BMD and Airfast.

12. BMD had no contracual relationship with Airfast.

13. BMD exercised no control over Airfast’s operations.

BMD merely received word of flight departure times from

Hudbay and submitted a list of employees to depart on each

flight.

14. BMD had no agency relationship with Airfast.

15. BMD did not investigate the safety record of Airfast.

16. BMD had no duty to investigate the safety record of

Airfast.

17. Airfast was a recognized and regulated commercial air

carrier that had operated in Indonesia and Singapore for a

number of years.

37a

18. ARII had no control whatsoever over BMD’s em-

ployees, including Craig.

19. None of the defendants committed any negligent act

that caused the air crash.

20. None of the defendants had any involvement with the

decision of the Airfast pilot to take off from Singapore or to

attempt to land in Indonesia.

II.

Plaintiff has attempted to demonstrate liability on the part

of defendants under various theories. Regarding ARCO,

plaintiff claims that ARII (a defendant named but never

served) may be deemed a Jones Act employer of Craig under

Spinks v. Chevron Oil Co., 507 F.2d 216 (Sth Cir. 1975), and

its progeny. Plaintiff then contends that the relationship be-

tween ARII and ARCO (a named and served defendant) is

such that ARCO must answer for ARII’s liability. Plaintiff

alleges two theories of liability against BMD. First, plaintiff

claims that through a contractual relationship, or de facto

control, Airfast was BMD’s agent. Alternatively, plainuff

alleges that BMD was guilty of independent negligence in

allowing its employees to be transported by Airfast. The

Court resolves these issues seriatim.

The evidence at trial (or want thereof) makes clear that

plaintiff's claim against ARCO must fail. Assuming, without

deciding, that ARCO and ARII share such a relationship that

ARCO is properly answerable for ARII’s liability, there is no

evidence before the Court to establish any liability on ARII's

part. Under Spinks, “{i]f a prime contractor has assumed

enough of the incidents of an employer, such as the ght to

control an employee’s work, he will be deemed a seaman’s

employer.” Jd. at 224. Under Guidry v. South Louisiana

Contractors, Inc., 614 F.2d 447, 454 (Sth Cir. 1980), this

38a

requirement was clarified such that plaintiff must show that

BMD “divested itself of all control over the employee. Unless

this has happened, the employee is entitled to look no further

than the signature on his check.” No evidence before the

Court indicates that ARII had any control over BMD’s em-

ployees or that BMD relinquished any control over its em-

ployees to ARII. Because no liability attaches to ARII, no

liability may attach to ARCO.

Because the Court’s prior Order determined that trans-

porting crew to the Bninkerhoff-I was not an operational

activity of the Brinkerhoff-I, plaintiff must establish an inde-

pendent agency relationship between Airfast and BMD.

Plaintiff claims that evidence of a contractual obligation

proves an agency relationship between the two parties.

Alternatively, plaintiff claims that evidence of BMD’s actual

control over Airfast proves the existence of this agency rela-

tionship. Both of these arguments fail.

It is beyond dispute that BMD had no contractual rela-

tionship with Airfast. Therefore, plaintiff cannot prove a

contractual agency relationship. Plaintiff points out that

BMD was obliged to provide transport for its employees to

the Brinkerhoff-I under the terms of the Drilling Contract.

Pl.’s Ex. 1, Schedule D, J 48. BMD counters that the terms

of the Drilling Contract were orally modified (as evidenced by

a letter dated May 6, 1981, after the fateful accident) when

Hudbay entered into the Use Agreement. PIl.’s Ex. 46.

The Court determines that the debate surrounding the

Drilling Contract is a red herring. Plaintiff has presented no

evidence whatsoever demonstrating a contractual relationship

between Airfast and BMD. That BMD may have been

obliged to provide transportation under the terms of a con-

39a

tract with a third party at most establishes an action for

breach of contract in favor of that third party. That BMD

may or may not have had an obligation to provide transpor-

tation under the Drilling Contract in no way demonstrates that

BMD, in fact, contracted for such transportation. The Court

finds that there was no contractual relationship between BMD

and Airfast.

Absent a contractual relationship between Airfast and

BMD, plaintiff can only prove that Airfast was BMD’s agent

by presenting evidence establishing that BMD exercised suf-

ficient actual control over Airfast. Plaintiff contends that

BMD actually controlled departure times for Airfast aircraft.

Plaintiff claims that after the second flight from Singapore to

Pekanbaru was forced to return due to heavy fog, BMD had

the flight departure time changed from 6:00 a.m. to 8:00 a.m.

Plaintiff also claims that BMD officials subsequently had the

time of departure changed back to 6:00 a.m. just before the

fatal crash.

Yet, plaintiff's own witness Richard Alex (‘Alex’), the

supervisor of drilling aboard the Brinkerhoff-I, testified that

he could “request” changes in flight schedules from Airfast,

but that he could not order any such change. Alex also testi-

fied that, if Airfast would not agree to a change, only Hudbay

(as contractor) could order a change in schedule. The ability

to “request” a change without any authority to enforce that

request does not constitute control.

Testimony from BMD’s witness Leon Moore (“Moore”),

BMD’s vice-president in South East Asia, confirms this con-

clusion. Moore also testified that BMD could not force Air-

fast to change flight times, but could merely “request” such

changes. He further testified that Alex had no authority to

change a flight time without going through Hudbay first.

Moore added that Hudbay made the flight arrangements and

40a

scheduled the flight times with Airfast. This testimony was

uncontroverted. Indeed, the deposition testimony of Stephen

Chia (“Chia’’) submitted by plaintiff establishes that Chia too

believed that any change in schedule had to come from Hud-

bay. Chia Dep., Nov. 17, 1990, at 13:21-23.

Nor has plaintiff presented any evidence establishing that

any representative of BMD was responsible for the change of

the A; cil 28, 1981, flight time from 8:00 a.m. to 6:00 a.m.®

Alex testified that he was out of Singapore when that decision

was made. Moore also testified that he was not involved with

that decision. Chia testified in a deposition that he did not

remember “getting contact with [Airfast] direct at all.” Chia

Dep. at 14:5-6. Finally, plaintiff's witness John Acton, a crew

member aboard the Brinkerhoff-I and a survivor of the crash,

testified that he did not know who had changed the flight

time. Plaintiff has presented no evidence establishing that

BMD had sufficient control over Airfast to establish Airfast as

its agent.

‘.

Plaintiff's final theory of liability is that BMD was negli-

gent in allowing its employees to fly with Airfast. Plaintiff

presents two theories of independent negligence. First,

plainuff argues that BMD was directly negligent in not pulling

its employees off the flight once it was apparent that the flight

would leave at 6:00 a.m. The second theory is that BMD

negligently entrusted its employees to Airfast’s care. As

noted above, BMD did not chose, or contract with, Airfast.

Thus, the basis of this second argument is that BMD was

negligent in failing to protest the choice of a charter airline by

a third party. Both arguments fail.

6. Alex testified that he requested from Airfast the change in flight time

for the April 15, 1981, flight from 6:00 to 8:00 a.m.

4la

BMD was not negligent in allowing its employees to fly

on a flight departing at 6:00 a.m. Testimony at trial estab-

lished that a previous flight that left at 6:00 a.m. had pro-

ceeded without mishap. A second flight leaving at 6:00 a.m.

had encountered fog, and the pilot had properly returned to

Seletar airport in Singapore. Thus, even assuming that BMD

knew there would be fog on arrival, BMD had no reason to

anticipate that the pilot would proceed to attempt an unsafe

landing. There was nothing per se unreasonable in departing

at 6:00 a.m. The crash was a result of the pilot’s superseding

and, according to plaintiff's own expert, “totally unimagin-

able” negligence. The evidence establishes that BMD was not

directly negligent for failing to remove its employees from the

flight.

Plaintiff has presented no evidence establishing a duty on

BMD’s part to investigate, or protest Hudbay’s choice of,

Airfast as an air carrier. Several witnesses testified that Air-

fast was an established carrier used by major oil companies in

South East Asia (including subsidiaries of Gulf Oil, Shell Oil

and Hudbay itself). Moreover, Airfast was qualified, certified,

and regulated by Indonesian and Singaporean aviation offi-

cials. BMD’s aviation expert Rudolf Kapustin (“Kapustin”)

testified that no enforcement actions or violations had been

filed against Airfast by Indonesian or Singaporean civil air

regulators.? Plaintiff has presented no evidence establishing

that Hudbay, and derivatively BMD, was not entitled to rely

on that governmental regulation. BMD had no duty to

7. At trial, plaintiff presented the testimony of a rebuttal expert, Robert

Rudich, to the effect that Kapustin is not qualified to render an eyncrt

opinion concerning Airfast’s safety. The Court finds that Kapustin is

well qualified to render a safety opinion.

Fs AR LCA eee A Re

42a

investigate a third party’s choice of a reputable and well-

established carrier. Absent a duty to investigate, BMD could

not have been negligent for failing to investigate, much less

for failing to protest another’s choice of airline.®

Il.

In light of the above findings of fact and discussion of

issues, the Court makes the following conclusions of law:

1. The Jones Act, 46 U.S.C. § 688 et seg., governs this

action.

2. ARII was not the Jones Act employer of Craig.

3. In order to recover under the Jones Act, plaintiff has

the burden of establishing, by a preponderance of the evi-

dence, that BMD’s negligence contributed to the death or

injury of Craig. Benton vy. United Towing Co., 120 F. Supp.

638, 639-40 (N.D. Cal. 1954), aff'd., 224 F.2d 558 (9th Cir.

1955). Plaintiff has failed to meet that burden.

5. The air transportation by Airfast was not part of the

operational activities of the vessel Brinkerhoff-I. Tim vy.

American President Lines, 409 F.2d 385 (9th Cir. 1969).

Therefore, Airfast was not an agent of BMD under the ex-

panded agency doctrine established by the Jones Act.

8. Although the evidence at trial was contradictory, it appears that Air-

fast may have been marginally less safe than other airlines. Yet, the evi-

dence is clear that any difference was not so dramatic that failure to pro-

test this choice was negligent. Plaintiffs expert relied almost exclu-

sively on the fact that Airfast had a higher “incident” percentage than

other airlines operating in Indonesia and Singapore to determine that

Airfast was an unsafe air carrier. As noted by BMD’s expert, Kapustin,

however, that information on its own is not adequate. Incident percent-

ages per plane can only be relevant if correlated to the number of take-

offs and landings negotiated and the type and location of airstrips. Air-

fast’s market niche appears to have been providing service to smaller,

less-regularly served airports such as that at Pekanbaru.

43a

6. BMD had no contractual relationship with Airfast, and

exercised no control over Airfast. Therefore, Airfast was not

the agent of BMD under traditional agency principles.

7. BMD is not vicariously liable for the negligence of

Airfast.

8 BMD was not guilty of any independent act of negli-

gence that was a proximate cause of Craig’s death.

Accordingly,

IT IS HEREBY ORDERED that there is no liability on

the part of any defendant for the alleged injuries to plaintiff

and, therefore, plaintiff shall take nothing from defendants.

Judgment shall be entered accordingly.

The foregoing constitutes the Court’s findings of fact and

conclusions of law required by Rule 52(a).

Dated: August 6, 1992.

/s/ _William H, Oreck _

William H. Orrick

United States District Judge

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APPENDIX E

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

C.A. No. 92-16962

D.C. No. CV 83-0604 (Northern California)

Ten Fong Craig, individually and as Administratrix

of the Estate of William Henry Craig deceased,

Plaintiff-Appellant,

Atlantic Richfield Co. et al.,

Defendants-Appellees.

[Filed May 3, 1994]

ORDER

Before: HUG, FARRIS and O’SCANNLAIN, Circuit Judges

The panel has voted to deny appellant’s petition for re-

hearing and to reject the suggestion for rehearing en banc.

The fuil court has been advised of the suggestion for re-

hearing en banc and no active judge has requested a vote on

whether to rehear the matter en banc. Fed. R. App. P. 35.

The petition for rehearing is denied and the suggestion for

rehearing en banc is rejected.

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APPENDIX F

STATUTES AND RULES INVOLVED

28 U.S.C. § 1331:

The district courts shall have original jurisdiction of all

civil actions arising under the Constitution, laws, or

treaties of the United States.

28 U.S.C. § 1333:

The district courts shall have original jurisdiction,

exclusive of the courts of the States, of:

(1) Any civil case of admiralty or maritime jurisdic-

tion, saving to suitors in all cases all other remedies to

which they se otherwise entitled.

The Jones Act, 46 U.S.C. App. § 688(a):

Any seaman who shall suffer personal injury in the

course of his employment may, at his election, maintain

an action for damages at law, with the right of trial by

jury, and in such action all statutes of the United States

modifying or extending the common-law right or reme-

dy in cases of personal injury to railway employees shall

apply; and in case of the death of any seaman as a result

of any such personal injury the personal representative

of such seaman may maintain an action for damages at

law with the right of trial by jury, and in such action all

statutes of the United States conferring or regulating the

right of action for death in the case of railway em-

ployees shall be applicable. Jurisdiction in such actions

shall be under the court of the district in which the de-

fendant employer resides or in which his principal office

is located.

46a

Federal Employers’ Liability Act, § 1, 45 U.S.C. § 51:

Every common carrier by railroad while engaging in

commerce between any of the several States or Terri-

tories, or between any of the States and Territories, or

between the District of Columbia and any of the States

or Territories, or between the District of Columbia or

any of the States or Territories and any foreign nation or

nations, shall be liable in damages to any person suffer-

ing injury while he is employed by such carrier in such

commerce, or, in case of the death of such employee, or

his or her personal representative, for the benefit of the

surviving widow or husband and children of such em-

ployee; and, if none, then of such employee’s parents;

and, if none, then of the next of kin dependent upon

such employee, for such injury or death resulting in

whole or in part from the negligence of any of the offi-

cers, agents, or employees of such carrier, or by reason

of any defect or insufficiency, due to its negligence, in

its Cars, engines, appliances, machinery, track, roadbed,

works, boats, wharves, or other equipment. . . .

Federal Rules of Civil Procedure:

Rule 38. Jury Trial of Right

(a) Right Preserved. The right of tnal by jury as

declared by the Seventh Amendment to the Constitution

Or as given by statute of the United States shall be

preserved to the parties inviolate.

(b) Demand. Any party may demand a trial by jury

of any issue triable of right by a jury by serving upon the

other parties a demand therefor in writing at any time

after the commencement of the action and not later than

10 days after the service of the last pleading directed to

such issue. Such demand may be indorsed upon a

pleading of the party.

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(d) Waiver. The failure of a party to serve a demand

as required by this rule and to file it as required by Rule

5(d) constitutes a waiver by the party of trial by jury. A

demand for trial by jury made as herein provided may

not be withdrawn without the consent of the parties.

Rule 39. Trial by Jury or by the Court

(a) By Jury. When trial by jury has been demanded

as provided in Rule 38, the action shall be designated

upon the docket as a jury action. The trial of all issues

so demanded shall be by jury, unless (1) the parties or

their attorneys of record, by written stipulation filed

with the court or by an oral stipulation made in open

court and entered in the record, consent to trial by the

court sitting without a jury or (2) the court upon motion

or of its own initiative finds that a right of trial by jury

of some or all of those issues does not exist under the

Constitution or statutes of the United States.

(b) By the Court. Issues not demanded for trial by

jury as provided in Rule 38 shall be tried by the court;

but, notwithstanding the failure of a party to demand a

jury in an action in which such a demand might have

been made of right, the court in its discretion upon mo-

tion may order a trial by a jury of any or all issues.

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.