Petition for Writ of Certiorari — Mitsubishi Heavy Industries, Ltd. v. Cantuba

ee

In the

Supreme Court of the Anited States

MITSUBISHI HEAVY INDUSTRIES, LTD.

Petitioner

versus

ANGELINA CANTUBA, et al.

Respondents

On Petition for a Writ of Certiorari

To the Supreme Court of the State of Louisiana

and to the Court of Appeal, Fourth Circuit

PETITION FOR A WRIT OF CERTIORARI

ROBERT B. ACOMB, JR.

JAMES E. WRIGHT, III

Jones, Walker, Waechter,

Poitevent, Carrere & Denégre, L.L.P.

201 St. Charles Avenue, 48th Floor

New Orleans, Louisiana 70170-5100

Telephone: (504) 582-8000

FacsimWe: (504) 582-8010

Counsel for Petitioner,

Mitsubishi Heavy Industries, Ltd.

*Counsel of Record

Printing, LLC., 4939 Tchoupitoulas, N. O., LA 70115, (504) 897-5000

GTess

QUESTION PRESENTED

On January 1, 1994, the MARIKA - a foreign flag

vessel loaded in Canada with 140,000 tons of ore and crewed

by Filipino and Greek nationals - sank on the High Seas off

Canada. Petitioner Mitsubishi Heavy Industries, Ltd.

(“MHI”) a Japanese corporation constructed and delivered in

1973 the vessel then known as the GARDEN GREEN to a

different shipowner. The vessel never traded in Louisiana or

even in the United States. All plaintiffs are residents of

Greece or the Philippines and the witnesses are in Canada,

Japan, Greece and the Philippines. The wreck lies on the bot-

tom of the North Atlantic Ocean. Here, the plaintiffs select-

ed a Louisiana state court and requested a jury trial.

1. Whether the decision of the Louisiana Supreme

Court, denying a review of the decision of the

Louisiana Appeals Court for the Fourth Circuit which

reversed the Louisiana trial court’s dismissal of the

case for forum non conveniens, is erroneous and is

repugnant to forum non conveniens principles articu-

lated by this Court and adopted as the binding public

policy of the State of Louisiana by an amendment to

the Louisiana Code of Civil Procedure Article 123(B)

which empowers a Louisiana state court to dismiss a

case for forum non conveniens in which a maritime

cause of action is predicated upon acts or omissions

originating outside Louisiana. The 1999 Legislation

eliminating the prohibition of the forum non conve-

niens defense in maritime cases was declared to be

remedial, curative and procedural legislation and

enforceable retroactively as well as prospectively.

LISTING OF ALL PARTIES TO

THIS PROCEEDING

The parties to these proceedings below were:

Petitioner Mitsubishi Heavy Industnes, Ltd. and the

following Respondents who were allegedly the survivors of

the various deceased crew members from the M/V MARI-

KA: Angelina Cantuba, Arceli Macarilay, Jamie Marmol,

Floro Besada, Sr., Catalina H. Tarrosa, Augustina Galvan,

Federico Bazarte, Dolores Encinarez, Norma Tija Salas,

Victorino R. Maratas, Merlyn S. Sorilla, Elizabeth S.

Saberon, Veronica Segundo, Zosima G. Fabila, Natividad F.

Calinawan, Lorna Maningo, Ekaterini loannides, Kosmas

Theocharis, Asimenia Triantafyllos, Katina Tzemos, Efthalia

Banos, Nashier Ismael, Leodeganio C. Ardina, Crispin

Talabong, Mercedes Delgado, Marivic R. Silva, Johnathan

Dean and Adelina Casinillo.

Additionally, the Plaintiff/Respondents named the

following as defendants: the American Bureau of Shipping,

L‘d., the Salvage Association, Ltd. and its retired employee,

Mr. Paul Francis Daniels.

il

CORPORATE DISCLOSURE STATEMENT

Corporate Disclosure Statement and Listing of Parent

and Subsidiary Companies in Accordance with

Supreme Court Rule 29.6:

Mitsubishi Heavy Industries, Ltd. has no parent cor-

poration. There is no publicly held company owning 10% or

more of Mitsubishi Heavy Industries, Ltd.’s stock.

1V

TABLE OF CONTENTS

Ce Fre IPO IEP eiiaictcbncnincssnscevicdaecinnvceciineninndberiia i

LISTING OF ALL PARTIES TO THIS

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CORPORATE DISCLOSURE STATEMENT IN

ACCORDANCE WITH SUPREME COURT

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BPs CO RAF CRUG Re 8 MR cescisissiviscceseisnnercconenrsencinsoncennes Vii

PETITION FOR WRIT OF CERTIORARI .....0..... ee l

COD UPON ss tassthiscnicevscncceninsnincineionetenneteenbeinninacha ]

PRSEU TERETE SescdcticmsnssAtepisasissitiatintinincsihedslaanneiialon l

CONSTITUTIONAL AND STATUTORY

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REASONS FOR GRANTING THE PETITION .......00000. 9

CONCLUSION ............. saiiseinsldaestieaciiacadiaaiean anaemia 21

APPENDICES

APPENDIX A

Judgment and Stipulation from Trial Court together

with Transcript of Oral Argument where Trial Court

granted MHI’s Motion to Dismiss for Forum

FON COINS osirctonsesscsninisinininaiaiiinimeliaiianginniemaseanae A-|

APPENDIX B

Opinion of Louisiana Court of Appeals for the

Fourth Circuit, published as Cantuba v. American

Bureau of Shipping, 811 So.2d 50 (La. Ct. App. 4th

CAR, ZEE) ncensecrovsscssvsureeenssaaasdudiatdetelonamea team B-]

APPENDIX C

Louisiana Supreme Court Order denying

MHI’s Petition for Certiorari dated

May 10, 2002 and published at 815 So.2d 846 ............ C-1

APPENDIX D

Louisiana Civil Code Article 123 together with

Historical Notes and Section I of Act 536 of 1999

RIG TOD sessiticiscsicdocsscpipinciachcdnetnindeinaiebauen D-|]

APPENDIX E

Excerpt from Joannides v. Marika Maritime

Corp., 928 F. Supp. 374 (S.D.N.Y. 1996) .........:cceeeeeeeee E-]

APPENDIX F

Exception of MHI to Personal Jurisdiction and

Venue together with excerpt from Supporting -

Memorandum raising Forum Non Conveniens

Seo Gm Polrwary 21, TODS cccccccccecevsmsssssssmeneanal F-]

v1

APPENDIX G

Exceptions of MHI together with Motion to

Dismiss on Grounds of Forum Non Conveniens

filed on November 27, 1996 and excerpt from

SUPPOTUE NEGTIOTRIIRTR .cccrcccesssneisniscnssstssnninensesnsnniaens G-]

APPENDIX H

Exception of MHI to Improper Venue, No Cause

or Right of Action and Motion to Dismiss for

Forum Non Conveniens filed January 13, 1997 .............. H-]

APPENDIX |

Judgment overruling MHI’s Exception of

Improper Service, Improper Venue, no Cause

of Action and Lack of Personal Jurisdiction

Gated FOOTORTY FSR icsncsccksssccsssetaneensecenenmaenas I-]

APPENDIX J

Judgment overruling MHI’s Exception of No

Cause or Right of Action, Improper Venue and

denying MHI’s Motion to Dismiss for Forum

Non Conveniens dated February 2, 1997 .............cceeeees J-1

APPENDIX K

Excerpt from MHI’s Memorandum in Support of

Motion to Dismiss for Failure to Comply with

Court Orders dated December 21, 1998 providing

history of plaintiffs’ discovery avoidance and lack

of compliance with court ordered discovery ................... K-1

Vii

TABLE OF AUTHORITIES

CASES Page

American Dredging Co. v. Miller.

510 U.S. 443, 114 S.Ct. 981, 127 L-Ed.2d 28......0......... 4,11

Cantuba v. American Bureau of Shipping,

811 So.2d 50 (La. Ct. App. 4th Cir. 2002)........ccccccccccccccees |

Cantuba v. American Bureau of Shipping

709 So.2d 263 (La. Ct. App. 4th Cir. 1998)..0.00000000000.....3.4

City of Bossier City v. Usery,

356 So.2d 1099 (La. App. 2 Cir. 19780 oocccccccccccececsceeees 21

Fullilove v. US. Casualty Co. of New York,

129 So.2d 816 (La. Ct. App. 2d Cir. 1961)....cccccccccccceeeee. 14

Gulf Oil Corp. v. Gilbert,

330 U.S. 501, 67 S.Ct. 839, 91 L. Ed. 1055 (1947) ........ 15

Hayden v. Torrence,

355 So.2d 1362 (La. Ct. App. Ist Cir.),

writ denied, 357 So.2d 1166 (La. 1978) .o...ccccccccccccceeeeen. 13

In Re Air Crash Disaster,

821 F. 2d 1147 (Sth Cir. 1987), rev'd on other

grounds, 490 U.S. 122, 109 S.Ct. 1676,

PP GAME Ue BED CU cicccrcntasscdnnnssesscnocsarcuccssnccacerecsensins 20

loannides v. Marika Maritime Corp.,

928 F.Supp. 374 (S.D.N.Y. 1996) ooo.ccccccccccescecceceeeeee passim

Vill

Miles v. Apex Marine Corp.,

498 U.S. 19, 111 S.Ct. 317, 112 L.Ed. 2d 275 (1990) ...9

Mobile Oil Corp. v. Higginbotham,

436 U.S. 618, 98 S.Ct. 2010, 56 L.Ed. 2d 581 (1978) ...9

Piper Aircraft Co. v. Reyno,

454 U.S. 235, 102 S.Ct. 252, 70 L. Ed. 2d 419 (1981) ...11

Salstein v. Bekins Van Lines, Inc..,

te 8) ye. fog. ere 20

Sigalas v. Lido Maritime, Inc.,

THO Fa Be BER CED Ge EDGE trnciccerectnnnvsntccramnitiatinniane 18

Snam Progetti, S.P.A. v. Lauro Lines,

FOF FA. Ee Geet Be. OO OD hintitheeneeinttintinnscentnnien 18

Vaz Borralho v. Keydril Co.,

GIG BO.28 STD Cs CU, BGG) saevcccccocnccvncccsonsonescssvecs 2,10,11

Wilkinson v. Wilkinson,

Be Ie er , FOV e Aiacinsescscebscsneniecdtemeneindsieumeaaded 21

STATUTES AND RULES

Ci. CR, GN OU sccrccictccentessnnthccieieteineniniatocgeoniteihiteien 2

te eg kf eee erred ee Zz

Louisiana Code of Civil Procedure, Article 123 ......... passim

MISCELLANEOUS

C. Wright, A. Miller and E. Cooper,

Vol. 15 Moores Fed. Practice & Procedure,

Jurisdiction 2d, § 3828 (West 2002) .....cccccccccccceccecees. 18

I

PETITION FOR WRIT OF CERTIORARI TO THE

SUPREME COURT OF THE UNITED STATES TO

REVIEW THE REFUSAL OF THE LOUISIANA

SUPREME COURT TO GRANT A CERTIORARI

REVIEW AND TO REVERSE AN ERRONEOUS AND

UNCONSTITUTIONAL DECISION BY THE

LOUISIANA FOURTH CIRCUIT COURT OF

APPEAL WHICH DEPRIVED PETITIONER OF DUE

PROCESS OF LAW UNDER

THE U. S. CONSTITUTION

MHI respectfully petitions for a writ of certiorari for

the following, to wit:

CITATIONS TO OPINION BELOW

The opinion from the Civil District Court for the Parish

of Orleans dismissing all suits is not reported but a copy of

the judgment, stipulation, and transcript of oral argument

from the trial court is reproduced herein in Appendix A-1.

The opinion of the Louisiana Court of Appeals for the

Fourth Circuit is published as Cantuba v. American Bureau

of Shipping, 811 So.2d 50 (La. Ct. App. 4th Cir. 2002), and

is reproduced herein in Appendix B-1.

MHI filed a Petition for Writ of Certiorari to the

Supreme Court for the State of Louisiana which was denied

on May 10, 2002. This order is published at 815 So.2d 846

and is reproduced herein in Appendix C-1.

JURISDICTION

The judgment of the Supreme Court of the State of

Louisiana was entered on May 10, 2002. (Appendix C-1.)

The jurisdiction of this Court is invoked under 28 U.S.C.

2

§ 1257(a) and under 28 U.S.C. § 2101(c).

CONSTITUTIONAL STATUTORY

PROVISIONS INVOLVED

Louisiana Code of Civil Procedure Article 123 is repro-

duced herein in Appendix D-1. Historical notes reflect that

previously Louisiana law provided that in seaman’s cases

and federal maritime law cases the doctrine of forum non

conveniens could not be urged as a defense. However for

valid reasons in 1999 the Louisiana Legislature specifically

deleted those provisions and permitted the defense of forum

non conveniens as public policy law of Louisiana. Historical

comments are reproduced in Appendix D.

The United States Constitution provides at Amendment

V that no person shall be deprived of life, liberty or proper-

ty without due process of law and at Section | of

Amendment XIV that “No State shall make or enforce any

law which shall abridge the privileges or immunities of citi-

zens of the United States; nor shall any State deprive any

person of life, liberty or property, without due process of

law; nor deny to any person within its jurisdiction the equal

protection of the laws.”

The United States Constitution does not require the

United States, as a condition of applying its laws to its own

citizens and residents, to be courthouse or lawmaker to the

world. Vaz Borralho v. — Co. 696 So.2d 379, 385 (Sth

Cir. 1983).

STATEMENT OF THE CASE

The MARIKA a 967 foot bulk carrier was loaded in

Canada with 140,000 tons of ore and sank in the North

Atlantic Ocean on January 1, 1994 during a fierce storm. The

3

MARIKA was a Liberian flag vessel on a voyage from

Canada to Ijmuniden. All aboard were lost. The vessel was

built in Japan by MHI and was delivered in Japan to its first

owner on July 18, 1973. MHI did not have any contact with

the vessel since that time. The vessel never traded with U. S.

ports and never sailed in Louisiana waters. It was loaded

with ore in Canada by Iron Ore Co. a Canadian stevedore

who was immune from suit in Louisiana. Cantuba v.

American Bureau of Shipping, 709 So.2d 263 (La. Ct. App.

4th Cir. 1998).

An investigation by Liberian and Canadian authorities

was unable to reach any conclusion as to why the vessel

sank. Both stated it would be rank speculation to assign a

cause for the sinking. Despite the lack of any connection to

Louisiana — except the residence of plaintiffs’ attorneys —

plaintiffs filed their wrongful death cases in Louisiana state

courts seeking a jury at a time when Louisiana law did not

permit a defendant in a maritime case to urge the defense of

forum non conveniens. The Louisiana Legislature, seeking to

cure this erroneous result, adopted a public policy amend-

ment in 1999 to permit this defense in maritime cases, The

district court applying the 1999 amendment to La. C.C.P. art.

123(B) dismissed all claims based on forum non conveniens

and determined that the courts of Greece, the Philippines,

Canada and Japan were available. (Appendix A-1.) All

defendants then filed the stipulation required by C.C.P. art.

123(C) agreeing to waive any defense of prescription and to

allow depositions taken in this case to be used in any other

forum. (Appendix A- 4.) A three-judge panel of the

Louisiana state appeals court erroneously reversed the trial

court. (Appendix B-1.) The Louisiana Supreme Court denied

certiorari. (Appendix C-1.)

In 1995 some of the same Greek plaintiffs sued in New

York under the Death on the High Seas Act and general mar-

itime law. In Joannides v. Marika Maritime Corp., 928

4

F.Supp. 374 (S.D.N.Y. 1996), excerpt attached in Appendix

E-1, the federal court dismissed that suit based on forum non

conveniens, noting the vessel was last repaired in Piraeus,

Greece and concluding that the bulk of the evidence and the

witnesses were in Greece. “There seems little justification

for opening the courts of the United States — which are paid

for by U. S. taxpayers and whose juries are composed of U.

S. citizens asked to drop their everyday activities to serve -

to claims in these circumstances even if as plaintiffs stoutly

argue, the ultimate base of operations of the vessel in ques-

tion was the United States.” 928 F.Supp. at 380. Suit was

then filed in both Greece and New Orleans.

The American Bureau of Shipping filed a third party

demand against the Canadian loading stevedore, Iron Ore

Co. Another Louisiana Fourth Circuit Appeals panel held

that Iron Ore — operating primarily in Canada — lacked suffi-

cient contacts in Louisiana to be joined as a party to this

case. Cantuba v. American Bureau of Shipping, 709 So.2d

263 (La. Ct. App. 4th Cir. 1998).

MHI sought dismissal of this case on the same grounds

as the New York case i.e. a motion to dismiss for forum non

conveniens and also objected to venue and pleaded forum

non conveniens as a defense throughout. (Appendices F, G

and H.) Plaintiffs opposed on the ground that article 123 of

the Louisiana Code of Civil Procedure as then enacted

specifically prohibited applying forum non conveniens to

cases brought under the general maritime law. The trial court

relying on American Dredging Co. v. Miller, 510 U.S. 443,

114 S.Ct. 981, 127 L.Ed.2d 285 (1994), where this Court

held that “[{T]he doctrine [of forum non conveniens] is one of

procedure rather than substance ...... ” American Dredging,

510 U.S. at 453, 114 S.Ct. at 988, 127 L.Ed.2d at 297, denied

MHI’s motion on February 25, 1997. (Appendix J-1.)

Previously, on February 1, 1996 (Appendix I-1) the trial

ee ee eee ae, ee

5

court overruled MHI’s exceptions of improper service,

improper venue, no cause of action, and lack of personal

jurisdiction.

Thereafter the Louisiana Legislature intervened and

expressed a different public policy for Louisiana and deleted

the special exception in maritime cases by amending

Louisiana Code of Civil Procedure Article 123 effective

June 30, 1999. All such cases in state court are subject to the

same forum non conveniens criteria as any other case.

As a procedural rule the Legislature decreed under

Louisiana public policy that the amendment should be

retroactively applied and stated: “This Act is declared to be

remedial, curative, and procedural and therefore is to be

applied retroactively as well as prospectively.” (Appendix

D-2.)

MHI - frustrated by plaintiffs’ persistent refusal to

appear and be deposed in their selected forum (New

Orleans) since 1996 even though plaintiffs were ordered by

the court to appear — then refiled its motion to dismiss for

forum non conveniens. All defendants filed a stipulation as

required by article 123(C) agreeing to waive any defense of

prescription should the case be filed in a more convenient

forum and to allow depositions taken in this case to be used

in the new case provided the new case were filed within an

appropriate time period. (Appendix A-4.)

The trial court granted MHI’s motion commenting: “I

guess if I’ve seen a case that needs to be transferred it’s

this one. And I guess that was my thought since I’ve had

the case and the motion had been denied [by Judge

DiRosa], so I’m going to grant the Motion to Dismiss.”

(Appendix A-19.) (emphasis added.) The trial judge signed a

detailed judgment explaining her reasons:

6

. the Court finds that the claims brought by the

plaintiffs are predicated upon acts and/or omissions

originating outside of the territorial boundaries of this

state and, considering the fact that the alleged acts

giving rise to this action occurred outside of the state

and that almost all of the witnesses and parties except

for one are located outside of the state and outside of

the United States, the Court finds that, in the interest

of justice, this suit should be dismissed, without prej-

udice, on the basis of forum non conveniens since this

forum is an inconvenient and inappropriate forum.

The Court further finds that Greece, The Philippines,

Canada or Japan would be convenient and appropri-

ate for this case in view of the location of the parties

and witnesses.

(Appendix A-2.)

On appeal, a three-judge panel of Louisiana’s court of

appeals reversed the trial court’s decision. (Appendix B.)

Contrary to plaintiffs’ claims of delay by defendants, plain-

tiffs repeatedly engaged in stall tactics in an effort to frus-

trate the defendants’ request to obtain answers to simple

interrogatories and requests for production of documents

directed to each plaintiff. This necessitated repeated motion

practice, which resulted in numerous court orders being

entered against the plaintiffs. MHI was awarded sanctions

against the plaintiffs for their failure to comply with the dis-

covery orders. The efforts of MHI and details concerning the

plaintiffs discovery deficiencies are set out in the history

appearing in the record and excerpt thereof is attached as

Appendix K. Plaintiffs refuse to appear in Louisiana for dep-

ositions or to fully respond to court ordered discovery.

Six years after the cases were filed no plaintiffs have yet

appeared to testify in deposition. Only six depositions of

J

others have been taken - the last deposition on December 17,

1996. MHI identified 49 possible parties or witnesses

located throughout the world that might be required in

the litigation.

Not one plaintiff has served complete written responses

to interrogatories or requests for production, far less

appeared for deposition. Neither the owners, operators of the

vessel or the loading stevedores have been deposed.

Between the period of June 30, 1999 to November a

2000, the following occurred:

(1) MHI filed two motions for extension of time to

respond to plaintiffs’ discovery which were necessary

because the information was located in Japan. The

court order granting same expressly states “with a

full reservation of all rights, objections and defenses

of MHI.”

(2) On November 2, 1999 MHI filed a notice of deposi-

tion of five plaintiffs to be taken in New Orleans on

February 15-17, 2000.

(3) On November 3, 1999 plaintiffs filed a notice of dep-

osition for use at trial of six plaintiffs to be taken in

the Philippines on February 10- 11, 2000.

(4) On January 25, 2000 the plaintiffs filed a motion to

quash the depositions of the plaintiffs which had be

noticed by MHI for New Orleans. In their memoran-

dum, the plaintiffs specifically state that they

informed MHI’s counsel that “the depositions were

inconvenient” and that they “would impose exorbi-

(6)

(7)

(8)

tant burden and expense upon the personal represen-

tatives who are primarily the widows of the deceased

seamen.” Plaintiffs now agree that this is an incon-

venient forum.

On February 4, 2000 the lower court held a hearing

on the motion to quash.! During the argument, coun-

sel for plaintiffs admitted that the relevant witnesses

were in Greece and the Philippines and expenses and

convenience of travel was burdensome for the plain-

tiffs and costs with coming to Louisiana would “eat

up a large portion of recovery. ”? The plaintiffs pro-

posed a trip to Greece and the Philippines.

Judge Ramsey denied plaintiffs’ motion to quash

from the bench stating: “I recognize the expense in

that the plaintiffs may have to travel to New

Orleans twice, but they chose this forum. I think

they’re [the defendants] entitled to have their dep-

ositions.” 3

On May 11, 2000 the plaintiffs filed a petition for let-

ters rogatory for document production from Iron Ore

Co. of Canada previously held by this Court not to be

held subject to personal jurisdiction in Louisiana.4

On November 2, 2000 MHI filed a motion to dismiss

for an inconvenient forum since the plaintiffs still

refused to come to New Orleans for depositions. A

> Ww dv

Cantuba record, vol. IX, p.1 et seq.

Id. at pp.3-4.

Id. at p. 9.

Cantuba record, vol.. VII, p. 1580.

Sh ea a th te

ee te ee ae G

hearing was scheduled for November 17, 2000.5

After two continuances this motion was granted by

Judge Ramsey on December 8, 2000.

The record during this period does not reflect any activ-

ity on the part of the plaintiffs’ lawyers in exercising dili-

gence to prosecute their claims. They took no depositions

during the time. Plaintiffs’ conduct illustrates the ultimate in

discovery avoidance: -The plaintiffs refused to come to

Louisiana to give depositions despite being ordered by

Judge Ramsey. Plaintiffs’ activities during this period

brought home the point that Civil District Court is an incon-

venient forum and they did not expend efforts to move the

case forward.

REASONS FOR GRANTING THE PETITION

Mobile Oil Corp. v. Higginbotham, 436 U.S. 618, 98

S.Ct. 2010, 56 L.Ed. 2d 58] (1978), and Miles v. Apex

Marine Corp., 498 U.S. 19, 111 S.Ct. 317,112 L.Ed. 2d 275

(1990), indicate that no court can interpose its own rules

once a legislative body specifically enters the area. Justice

O’Connor writing for the Court in Miles v, Apex Marine

Corp. stated:

These statutes established an unanmbiguous policy

in abrogation of those principles that underlay The

Harrisburg. Such a policy is “to be given its appro-

priate weight not only in matters of statutory con-

struction but also in those of decisional law.”

Moragne, supra, at 391, 90 S.Ct., at 1782.

Admiralty is not created in a vacuum: legislation

has always served as an important source of both

common law and admiralty principles. [citations

5 Cantuba record, vol. V11, p. 1596.

10

omitted.] The unanimous legislative judgment

behind the Jones Act, DOSHA, and the many state

statutes created a strong presumption in favor of a

general maritime wrongful death action.

But legislation sends other signals to which an

admiralty court must attend. “The legislature does

not, of course, merely enact general policies. By the

terms of a statute, it also indicates its conception of

the sphere within which the policy is to have

effect.”” Moragne, supra, at 392, 90 S.Ct., at 1783.

Congress, in the exercise of its legislative powers,

is free to say “this much and no more.” An admi-

ralty court is not free to go beyond those limits.

498 U.S. at 24, 111 S.Ct. at 321, 112 L.Ed. 2d at 285.

(emphasis added.)

MHI has been denied due process by the decisions of

the Louisiana Supreme Court and the Fourth Circuit which

decisions completely undermine and subvert the important

public policy determination of the Louisiana Legislature in

La. C.C.P. art. 123 where the lower appellate courts had no

right to intervene. The lower appellate courts had a funda-

mental misunderstanding of the defense of forum non con-

veniens. Until the law was changed in 1999, the Louisiana

courts could not dismiss a maritime case for forum non con-

veniens in a maritime case brought in state court.

“The principle of forum non conveniens permits the

court to decline jurisdiction even though venue and jurisdic-

tion are proper on the theory that for the convenience of the

litigants and the witnesses, the action should be tried in

another judicial forum.” Vaz Borralho v. Keydril Co., 696

F.2d 379, 385 (Sth Cir. 1983). “The Constitution does not

require the United States, as a condition of applying its

at ks Dideawaice nie Aettbcd

OS tt eS -

1]

laws to its own citizens and residents, to be courthouse or

lawmaker to the world.” /d. at 389. (emphasis added.) A

foreign litigant does not enjoy any presumption in its

choice of forum and that a foreign litigant’s choice of

forum deserves “less deference” than a plaintiff would

choose in his home forum. Piper Aircraft Co. v. Reyno, 454

U.S. 235, 256, 102 S.Ct. 252, 265-66, 70 L. Ed. 2d 419, 436

(1981) (emphasis added).

Until 1999 a Louisiana state court was powerless to dis-

miss a maritime case brought by foreign litigants on the

basis of forum non conveniens. The previous version of La.

C.C.P. art. 123 was considered by this Court’s decision in

American Dredging Co. v. Miller, 510 U.S. 443, 114 S. Ct.

981, 127 L.Ed. 2d 285 (1994). Justice Scalia, writing for the

Court, concluded that the doctrine of forum non conveniens

was a rule of “procedure” not “substance” and determined

that Louisiana was free to adopt its own rules as to forum

non conveniens. At that time, Louisiana’s rule was marked-

ly different from the rule observed by the federal courts in

Louisiana and elsewhere. This Court noted:

[F]orum non conveniens is not a substantive right

of the parties but a procedural forum . . . Federal

courts will continue to invoke forum non conve-

niens to decline jurisdiction in appropriate cases,

whether or not the State in which they sit chooses to

burden its judiciary with litigation better handled

elsewhere.

510 U.S. at 455 n. 4, 114 S. Ct. at 989 n. 4, 127 L.Ed. 2d at

298 n.4.

Five years later, the Louisiana Legislature changed

12

Louisiana’ s law of forum non conveniens. Act 536 of the

1999 Legislature retroactively amended Subparts B and C of

La. C.C.P. art. 123 as part of remedial and curative legisla-

tion. (Appendix D- 1.) Effective June 30, 1999, a state dis-

trict court was empowered to dismiss a maritime case for

forum non conveniens where a foreign litigant asserted a

cause of action “predicated on acts or omissions originating

outside the territorial boundaries of the state.” La. C.C.P. art.

123(B). La. C.C.P. art. 123 is crystal clear that cases of this

type should not be in Louisiana’s courts even though venue

and jurisdiction may be technically correct.

The Legislature declared the 1999 amendment to be

remedial, curative, and procedural legislation:

THIS ACT IS DECLARED TO BE REMEDIAL,

CURATIVE, AND PROCEDURAL AND

THEREFORE IS TO BE APPLIED RETROAC-

TIVELY AS WELL AS PROSPECTIVELY.

(Appendix D-2.) (emphasis added.)

There are no published decisions interpreting Act 536 or

the amendments to La.C.C.P. art 123(B) and (C). The

Louisiana Fourth Circuit’s decision in a case of first impres-

sion is the first case to ever apply a waiver and estoppel the-

ory to the defense of forum non conveniens. This is directly

contrary to La. C.C.P. art, 123’s plain language which indi-

cates that the defense of forum non conveniens may be

asserted by a contradictory motion and the decision is con-

trary to federal law. There is no time limit for asserting this

defense. The lower courts were powerless to rewrite the

statute in this manner.

Significantly, MHI pleaded forum non conveniens and

13

objected to the Louisiana venue in all of its responsive plead-

ings and did not do anything which could result in a waiver

of this critical defense. Even though Louisiana procedural

law prior to 1999 did not allow forum non conveniens to be

asserted in state court nevertheless MHI relying on its con-

stitutional rights previously objected to venue but lost and

attempted to seek a dismissal on forum non conveniens on

the basis that U. S. law was not and should not be applicable

on these facts. (Appendices F, G, H, I, J and K.)

The Fourth Circuit totally ignored that this was a

case involving remedial and curative legislation and imper-

missibly read into the law the defense of waiver or estoppel.

It is well recognized that:

The function of the Court in interpreting a statute

is to ascertain the intention of the legislature and to

give effect to the true legislative intent; regardless

of how broad and comprehensive may be the lan-

guage employed. Bomnette v. Karst, 261 La. 850,

261 So.2d 589 (1972); In re Hibernia Bank & Trust

Co., 185 La. 448, 169 So0.464 (1936); Anderson vy.

West, 354 So.2d 636 (La. App. Ist Cir. 1977).

Hayden v. Torrence, 355 So.2d 1362,1364 (La. Ct. App. Ist

Cir.), writ denied, 357 So.2d 1166 (La. 1978). The Louisiana

Civil Code and the jurisprudence also recognize that reme-

dial and curative legislation must be construed liberally:

While Art. 8 of the LSA-Civil Code provides that

a law can prescribe only for the future, and can have

no retrospective operation nor impair the obligation

of contract, it is well settled than an exception to

this rule are laws which are remedial or curative in

their nature. “Remedial Statutes” are statutes which

confer a remedy, and “remedy” is the means

14

employed to enforce a right or redress an injury.

Young v. Staman, La. App.2d Cir., 1940, 200

So.187; Washington Nat. Ins. Co. v. McLemore, La.

App 2d Cir., 1935, 163 So. 773. “Curative Statutes”

are statutes which, by their very nature, are intend-

ed to enable persons to carry into effect that which

they have designed and intended, but which have

failed of their expected legal consequences by rea-

son of some statutory disability or irregularity in

their action. Such acts are, by their very nature,

intended to operate on past transactions, and are

necessarily retrospective. Curative statutes, by

reason of their remedial and retrospective

nature, are to be liberally construed to correct

the mischief or advance the remedy intended,

and are applicable not only to past transactions

but also to pending cases, either in the trial court

or on appeal. 82 C.J.S. Statutes s430, p. 1002.

Fullilove v. U.S. Casualty Co. of New York, 129 So.2d 816,

824 (La. Ct. App. 2d Cir. 1961)

(emphasis added.)

Now that the Louisiana legislature has adopted a forum

non conveniens amendment which made state law consistent

with federal law on this subject, the error of the appellate

courts’ decisions are illustrated by the flawed approach of

the Fourth Circuit’s analysis. The decisions of the appellate

court and Louisiana Supreme Court are repugnant to the due

process guidelines adopted by this Court. In Gulf Oil Corp.

v. Gilbert, 330 U. S. 501, 67 S.Ct. 839, 91 L. Ed. 1055

(1947), this Court described the doctrine of forum non con-

veniens and held that there are various public and private

interest factors that a court must weigh in determining

whether a forum is convenient:

ey Se

SENT POSEY SE Pie

ek aad ‘

ern

OR Tat se chee) me EWS:

15

The principle of forum non conveniens is simply

that a court may resist imposition upon its jurisdic-

tion even when jurisdiction is authorized by the let-

ter of a general venue statute. These statutes are

drawn with necessary generality and usually give a

plaintiff a choice of courts, so that he may be quite

sure of some place in which to pursue his remedy.

But the open door may admit those who seek not

simply justice but perhaps justice blended with

some harassment. A plaintiff sometimes is under

temptation to resort to a strategy of forcing a

trial at a most inconvenient place for an adver-

sary, even at some inconvenience to himself.

Many of the states have met misuse of venue by

investing courts with a discretion to change the

place of trial on various grounds, such as the con-

venience of witnesses and the ends of justice .. . .

Wisely, it has not been attempted to catalogue

the circumstances which will justify or require

either grant or denial of remedy. The doctrine

leaves much to the discretion of the court to

which plaintiff resorts, and experience has not

shown a judicial tendency to renounce one’s own

jurisdiction so strong as to result in many abus-

es.

330 U.S. at 507-08, 67 S.Ct. at 842-43, 91 L.Ed. at 1062

(emphasis added).

Relevant public and private factors outlined by this

Court in Gulf Oil Corp. v. Gilbert include: The relative ease

of access to sources of proof; the availability of compulsory

process for the attendance of the unwilling; the cost of

obtaining evidence of the willing witnesses; the possibility

of a view of the premises; and “all other practical problems

OES RLIION SAE EO RN ER St

ARI Ae oa

16

that make trial of a case easy, expeditious and inexpensive.”

330 U.S. at 508, 67 S.Ct. at 843, 91 L.Ed. at 1062, 67 S. Ct.

at 843. Public interest factors include the administrative dif-

ficulties for courts when litigation piles up in congested cen-

ters instead of being handled at its origin; the public’s inter-

est in “having localized controversies decided at home”; and

jury duty. 330 U.S. at 508-09, 67 S.Ct. at 843, 91 L.Ed. at

1062-63.

Jury duty is a burden that ought not to be

imposed upon the people of a community which

has no relation to the litigation. In cases which

touch the affairs of many persons, there is reason

for holding the trial in their view and reach

rather than in remote parts of the country where

they can learn of it by report only.

Id. (emphasis added). This is the injustice sought to be

imposed here on the citizens of New Orleans.

This public interest factor was commented upon by the

Ioannides court in dismissing Greek claims arising out of

this sinking:

There is a final public interest consideration that

bears more than passing mention. This is a case

brought on behalf of Greek seamen who shipped

aboard a Liberian vessel crewed by a Greek compa-

ny which, wherever its ownership lay, was engaged

exclusively in carrying cargos to and from non-U.S.

ports. There are fora and remedies available to

plaintiffs under the law of their country of domicile.

Three of them already have settled their claims for

sums which are substantial, even if they perhaps

might seem low by American standards. There

seems little justification for opening the courts of

the United States — which are paid for by U.S.

17

taxpayers and whose juries are composed of U.S.

citizens asked to drop their everyday activities to

serve — to claims in these circumstances even if,

as piaintiffs stoutly argue, the ultimate base of

operations of the vessel in question was the

United States. That no doubt is why judges of this

Court repeatedly have dismissed cases like this one

— all brought by the same attorney — in favor of

Greek fora. [Citations omitted.]

928 F. Supp. at 380. (emphasis added.) These factors were

ignored and disregarded by the Louisiana Supreme Court

and the Louisiana Fourth Circuit Court of Appeals.

The Louisiana Legislature rejected the old and specifi-

cally did not establish a time limit for the assertion that a

forum is inconvenient because they realized it may be the

actions of plaintiffs that make it inconvenient if they refuse

to come to the forum they alone originally selected MHI

filed a motion to dismiss for forum non conveniens at the

outset. The motion was denied under then existing law which

did not allow a dismissal for forum non conveniens. MHI’s

answer reserved the defense and specifically pleads that “...

This forum is an inconvenient forum for the maintenance of

this action and ... this matter should be dismissed under La.

C.C.P. art. 123 or other applicable law.” (loannides Rec. Vol.

1, P. 37). The new law went into effect on June 30, 1999 and

after plaintiffs refused to appear in New Orleans for deposi-

tion MHI renewed its motion to dismiss for forum non con-

veniens. Since there was no discovery or trial fixing during

the period between June 30, 1999 and the date MHI renewed

its motion this could hardly be characterized as an “uncon-

scionable” delay and the lower appellate courts erred in so

concluding.

The decision below is repugnant to federal law which

18

recognizes that a dismissal for forum non conveniens may be

addressed to the discretion of the court at any time. Snam

Progetti, S.P.A. v. Lauro Lines, 387 F.Supp. 322 (S.D.N-Y.

1974). There is no time limit on when a motion to dismiss

for forum non conveniens can be made. See C. Wright, A.

Miller and E. Cooper, Vol. 15 Moores Fed Practice &

Procedure, Jurisdiction 2d, § 3828 (West 2002). A motion to

dismiss based on forum non conveniens is not required to be

filed prior to answer and one federal court, rejecting plain-

tiff’s argument that the defendant had waited too long to file

a motion for forum non conveniens stated:

Even apart from this authority, there are sound

logical reasons for not requiring a forum non con-

veniens motion to be made within the limited time

period allowed for a defendant to file an answer or

move to amend his answer.... This time is certainly

adequate to check the venue statutes and determine

whether they have been met. However, the factors

of equity and convenience, such as the location

of important witnesses and evidence, which con-

trol a forum non conveniens motion may not be

apparent without time-consuming investigation

and, frequently, discovery.

Finally, the court notes the plaintiffs will suf-

fer no identifiable prejudice by virtue of a deci-

sion on this Motion now rather than at an earli-

er time during the course of this litigation.

387 F. Supp. at 323 (emphasis*added).

In Sigalas v. Lido Maritime, Inc., 776 F. 2d 1512

(11th Cir. 1985), the Eleventh Circuit noted that the district

court did not abuse its discretion in dismissing a case for

forum non conveniens. The defendant filed its motion 16

ve ee eee eT

19

days before the final pretrial conference and the court heard

oral argument and granted the motion at the pretrial confer-

ence. The plaintiff contended that she was prejudiced and

that the lower court committed reversible error. Plaintiff fur-

ther contended that “lengthy discovery” had taken place and

that the case was “ready to be tried on the merits.” Id. at

1520. The court rejected this argument and noted that the

plaintiffs’ arguments of “surprise” and “wasted effort” were

baseless:

As to the second [argument] the basis of her

complaint is surprise and wasted effort. There

was no surprise. The original answer included

appellee’s defense of forum non conveniens.

Appellant fully briefed the question. We will not

restrict the ability of district courts to dismiss

cases on motions of forum non conveniens when

it becomes clear there are no factual issues in

dispute.

The wasted effort argument suggests that

appellant was put to great time and expense

answering appellees’ depositions and interroga-

tories only to have the merits adjudicated before

trial. In fact it was appellant who did all of the

deposing. Appellees did none. The expenses Mrs.

Sigalas incurred were of her own making. An

otherwise meritless case may not be boot-

strapped past summary judgment merely

because the plaintiff expended much effort and

money in the preliminary phase of the case.

Id. (emphasis added).

Here the Fourth Circuit erroneously applied the con-

cepts of waiver and estoppel and relied solely upon a case

that does not even involve forum non conveniens but

20

involved the claim procedures of an interstate motor carrier

under the Carmack Amendment to the Interstate Commerce

Act. In Salstein v. Bekins Van Lines, Inc., 993 F.2d-1187 (Sth

Cir.1993), the plaintiff sought recovery for damage to their

household goods which were being transported by a moving

company. The district court granted summary judgment in

favor of the moving van company and the Fifth Circuit

affirmed. The plaintiffs contended that the moving company

had “waived” certain claim filing requirements based on the

plaintiffs dealings with a claim representative. The Fifth

Circuit declined to apply waiver and estoppel and noted that

waiver and estoppel were two different concepts: waiver

involves the voluntary or intentional surrender of a known

right whereas estoppel “arises when one party has reason-

ably relied on the conduct or statements of another; if the

relying party suffers harm as a result of this reliance, the

inducing party can be estopped from disavowing his earlier

conduct or statement.” 993 F.2d 1191 (citations omitted).

The only forum non conveniens case cited was In Re Air

Crash Disaster, 821 F.2d 1147 (Sth Cir. 1987), rev'd on other

grounds, 490 U.S. 122, 109 S.Ct. 1676, 104 L.Ed 2d 113

(1989), but that case specifically states that a delay in assert-

ing the defense of forum non conveniens does not result in a

“waiver.” In the very next sentence appearing after the

Fourth Circuit’s quotation, the Fifth Circuit stated:

While untimeliness will not effect a waiver, it

should weigh heavily against the granting of the

motion because a defendant’s dilatoriness promotes

and allows the very incurrence of costs and incon-

venience the doctrine is meant to relieve. |

Estoppel is not favored and there is nothing MHI did

upon which it can be stated that MHI was estopped and/or

had waived this defense. Its pleadings and actions in this

case reflect that this defense was at all times preserved and

was never waived. Under Louisiana law, “[e]quitable estop-

TO LARK. oan tnt

21

pel is the effect of a person’s voluntary conduct legally pre-

cluding him from asserting rights against another, who in

reliance upon that person’s conduct and because of that con-

duct, has changed his position to the extent that he will suf.

fer injury if that person is allowed to repudiate his conduct.”’

City of Bossier City v. Usery, 356 So. 2d 1099, 1101 (La. Ct.

App. 2d Cir. 1978). “Equitable estoppel is designed to foster

justice by preventing a person from taking a position con-

trary to his prior conduct, which has been detrimentally

relied upon by another person .... Estoppel is not generally

favored at law and is to be applied only in cases present-

ing special circumstances.” /d. at 1101 (citing Wilkinson v.

Wilkinson, 323 So.2d 120, 216 (La. 1975)) (emphasis

added). In Wilkinson Justice Dixon stated “Estoppels are not

favored in our law.” 323 So.2d at 126.

CONCLUSION

The Louisiana Legislature deliberately reversed and

rejected the open forum concept that was forced into

Louisiana law during Governor Edwards’ regime and in

1999 repudiated the idea that forum non conveniens could

not be a defense in maritime cases simply because some in

the State were interested in soliciting cases from worldwide

jurisdictions to bring them to trial in Louisiana courts. This

legislative action was a public policy rule — made retroactive

because of its importance — and cannot be ignored or inter-

fered with by a court without deliberately violating the liti-

gants’ constitutional guarantees of due process and as this

Court has opined once a legislative body enters a field a

court cannot substitute its own concepts in that area. MHI

respectfully requests that the Court grant this Petition and

reverse and vacate the flawed decisions by the Louisiana

appellate courts and that this Court reinstate the trial court’s

judgment which preserves any rights of the claimants to pro-

ceed to trial in a jurisdiction that would not be a burden on

SS a a ee

22

the courts, taxpayers and citizens of Louisiana who have no

interest in the outcome of this case.

Respectfully submitted,

Robert B. Acomb, Jr.*

James E. Wright, III

Jones, Walker, Waechter, Poitevent,

Carrére & Denégre, L. L. P.

201 St. Charles Avenue, 50th Floor

New Orleans, LA 70170-5100

Telephone: (504) 582-8000

Counsel for Petitioner,

Mitsubishi Heavy Industries, Ltd.

*Counsel of Record

A-1]

APPENDIX A

CIVIL DISTRICT COURT FOR THE

PARISH OF ORLEANS

STATE OF LOUISIANA

NO. 94-16056 SECTION “13” DIVISION “J”

c/w 95-19198

96-21561

97-00070

Filed FEB 9, 2001

ANGELINA CANTUBA, ET AL

VERSUS

THE AMERICAN BUREAU OF SHIPPING AND

MITSUBISHI HEAVY INDUSTRIES, LTD.

FILED:

DEPUTY CLERK

JUDGMENT

This matter came on for hearing on December 8, 2000 on

the Motion to Dismiss for forum non conveniens filed by

defendant, Mitsubishi Heavy Industries, Ltd. (“MHI i *

Present were:

Robert B. Acomb, Jr. and James E. Wright, III,

counsel for Mitsubishi Heavy Industries, Ltd.

and

David P. Gontar, counsel for Plaintiffs

A-2

Having considered the Motion to Dismiss for Forum

Non Conveniens, its Memorandum in Support and exhibits

attached thereto, as well as the Memorandum in Opposition

filed by the plaintiffs, the lack of opposition by any other

party and the argument presented at the hearing by counsel

for MHI in favor of said motion and the plaintiff in opposi-

tion of said motion, the Court finds that the claims brought

by the plaintiffs are predicated upon acts and/or omissions

originating outside of the territorial boundaries of this state

and, considering the fact that the alleged acts giving rise to

this action occurred outside of the state and that almost all of

the witnesses and parties except for one are located outside

of this state and outside of the United States, the Court finds

that, in the interest of justice, this suit should be dismissed,

without prejudice, on the basis of forum non conveniens

since this forum is an inconvenient and inappropriate forum.

The Court further finds that Greece, The Philippines, Canada

or Japan would be convenient and appropriate for this case

in view of the location of the parties and witnesses. The

Court has reviewed the stipulation of defendants and finds

that it is in accordance with the requirements of La. C.C.P.

art. 123 C. Accordingly,

IT IS HEREBY ORDERED that this action be and is

hereby dismissed, without prejudice on the ground forum

non conveniens;

IT IS FURTHER ORDERED that the plaintiffs will have

60 days from the date of this Judgment to commence a suit

on the same cause of action or any cause of action arising out

the

transaction in suit in a court of competent jurisdiction in

Greece, The Philippines, Canada or Japan.

A-3

IT IS FURTHER ORDERED that the stipulation entered

by the defendants shall be null and of no effect if such suit is

not commenced within 60 days from the date of this

Judgment; and

IT IS FURTHER ORDERED that this case may be rein-

Stated in this Court in the event that the foreign forum in

which such suit has been filed is unable to assume jurisdic-

tion over the parties or does not recognize such cause of

action or any cause of action arising out of the same transac-

tion or occurrence.

New Orleans, Louisiana, this 8 day of February, 2001.

/s/ Nadine Ramsey

DISTRICT JUDGE

Feb 09, 2001

A-4

CIVIL DISTRICT COURT FOR THE

PARISH OF ORLEANS

STATE OF LOUISIANA

NO. 94-16056 SECTION “13” DIVISION “J”’

c/w 95-19198

96-21561

97-00070

ANGELINA CANTUBA, ET AL

VERSUS

THE AMERICAN BUREAU OF SHIPPING AND

MITSUBISHI HEAVY INDUSTRIES, LTD.

FILED:

DEPUTY CLERK

STIPULATION UNDER LA. C.C.P. ARTICLE 123 C

FOR DISMISSAL FOR FORUM NON CONVENIENS

Mitsubishi Heavy Industries. Ltd. The American Bureau

of Shipping. The Salvage Association, Ltd. and Paul Francis

Daniel (hereinafter referred to collectively as “defendants”’)

who, in accordance with this Court’s ruling on December 8,

2000 and Article 123 C of the Louisiana Code of Civil

Procedure, submit the following stipulation:

1. The defendants shall waive any defense based upon

prescription or the statute of limitation that has matured

since the commencement of this action in Louisiana provid-

ed that a suit on the same cause of action or on any cause of

A-5

action arising out of the same transaction or occurrence of

this case is commenced in a court of competent jurisdiction

in Greece, The Philippines, Canada or Japan within 60 days

from rendition of the judgment of dismissal in the captioned

case:

2. The defendants stipulate that any depositions which

have been taken in these consolidated proceedings may be

used by any party in any action commenced in accordance

with Stipulation No. | above to the extent allowed by the

forum: and

3. This stipulation shall be null and of no effect if suit is

not commenced within the 60 days from the date of the judg-

ment of dismissal herein.

Respectfully submitted,

ROBERT B. ACOMB, JR., T.A. (#02304)

JAMES E. WRIGHT, III (#13700)

Jones, Walker, Waechter,

Poitevent, Carrére & Denégre, L.L.P.

201 St. Charles Avenue, 48th Floor

New Orleans, Louisiana 70170-5100

(504) 582-8000

(504) 582-8010 (FAX)

ATTORNEYS FOR DEFENDANT,

MITSUBISHI HEAVY INDUSTRIES.

LTD.

A-6

David L. Carri

DAVID L. CARRIGEE (#3892)

Burke & Mayer

Energy Center, 20th Floor

1100 Poydras Street

New Orleans, Louisiana 70163

(504) 569-2900

(504) 569-2099 (F AX)

ATTORNEYS FOR THE AMERICAN

BUREAU OF SHIPPING

/s/ A. Gordon Grant, Jr

A. GORDON GRANT, JR. (#6221)

Montgomery, Barnett, Brown, Read,

Hammond & Mintz

3200 Energy Center

1100 Poydras Street

New Orleans, Louisiana 70163

(504) 585-3200

(504) 585-7688 (FAX)

ATTORNEYS FOR THE SALVAGE

ASSOCIATION. LTD. and

FRANK DANIEL

CERTIFICATE OF SERVICE

| do hereby certify that I have on this 24th day of January

2001, served a copy of the foregoing pleading on counsel for

all parties to this proceedirig by hand delivery and/or by

mailing the same by United States mail, properly addressed

and first class postage prepaid.

/s/ W

A-7

CIVIL DISTRICT COURT FOR THE

PARISH OF ORLEANS

STATE OF LOUISIANA

CANTUBA, ANGELINA

VERSUS CASE NO. 94-16056

AMERICAN BUREAU OF

SHIPPING, ET AL

APPEARANCE:

REPRESENTING THE PLAINTIFF:

JIM WRIGHT, ATTORNEY AT LAW

REPRESENTING THE DEFENDANT:

DAVID GUNTER, ATTORNEY AT LAW

ALSO PRESENT: BOB AIKMAN

REPORTED BY: PINKEY FERDINAND

CERTIFIED COURT REPORTER

DIVISION “J”

INDEX

ABAAINEING OF} BERR. WIRIRIEE B ccccorennssormcsercvssscesneacernmioond 3

PRISE T OR BER. COUEG Bitte osesciesescosconsrsioneesoctnionmnentints 7

PIRASUEIN ES UE DEIR. WIRIRIRS D sxicsscesessnosnsssesrensrinnenemtin 1]

TRRFAESOES Oe BSUES GRPRAUED coscescomcreninsssisrsiomscaveessiommaaial 12

SESE CFIC Eee RAR S EF PA PRE ID. cocreservieesuseseoneetnnesseunvioneernion 14

A-9

PROCEEDINGS

BY MR. WRIGHT:

Good morning, Your Honor.

BY THE COURT:

Good morning.

BY MR. WRIGHT:

Jim Wright for Mitsubishi Heavy Industries Limited.

Bob Aikman is with me in the court.

BY MR. GUNTER:

Your Honor, I’m David Gunter with Randy Ungar’s

office for the Plaintiff.

BY MR. WRIGHT:

This matter is before the Court on Mitsubishi’s

Motion to Dismiss on Forum Non Conveniens based upon

the new amendment to Article 123 (B) of the Louisiana Code

of Civil Procedure removing the barrier to the application of

Forum Non Conveniens in maritime cases. It is submitted

that this incident involving a foreign flagship owned by

Greek nationals sailing from Septile (phonetic), Canada to

Engimen, (phonetic) The Netherlands, sinking with all lost

aboard crewed by all foreigners. The ship having never

sailed into U.S. waters in the history of the vessel that this

Court located at Loyola and Poydras has no interest in

resolving this foreign dispute. And we bring this motion

now, because previously we were — The statute provided

that it did not apply in maritime cases. We had brought venue

objections before, which were denied, so we attempted to

preserve those issues, but the law was not in place to protect

us in that regard, Your Honor.

A-10

Now, the legislature has amended the law, made it

retroactive to apply to pending cases, therefore, the legisla-

ture is acknowledging that waiver would not be an issue,

because they would not have made it applying to pending

cases.

In our reply memorandum we point out to the Court

that when the Segura case by the Louisiana Supreme Court,

when the law has changed during the pendency of a suit, and

the retroactive application of the new law is permissible, the

new law applies even on appeal, though it requires reversal

of the trial court’s previous judgment. Previously this Court

had denied Mitsubishi’s Motion to Dismiss on Forum Non

Conveniens. This Court has the discretion to reconsider pre-

vious rulings in light of changes in.the law. Now, the issue

of’ Forum Non Conveniens as set forth in the statute

requires that the acts or omission giving rise to the lawsuit

occur outside of the territorial boundaries of the state. That

is uncontested in this situation.

There also has to be a more appropriate forum out-

side of the state taking into consideration where the acts giv-

ing rise to the action occurred. Let’s focus on that, Your

Honor. In this situation, nothing occurred within the bound-

aries of Louisiana, much less the United States. The ship was

repaired in 1993. This last major repairs in 1993 in Parais

(phonetic), Greece, which is a suburb of Athens basically.

That is a major allegation that has been raised by the

Plaintiffs in this case, and was also raised by some of the

same Plaintiffs in the New York case, which we cited to you,

the leanetis (phonetic) versus the Marika Maritime

Corporation case, which I’m going to get to later.

Nevertheless, no acts occurred in the Louisiana, much less

the United States.

A-1]

My client, Mitsubishi Heavy Industries, built the ship

in Japan some 20 years ago. The surveys of the vessel

occurred outside of this country by foreign nationals. Even

though they may have been employees of ABS, they were

Greek employees of ABS. They have been deposed. They

live in Athens, Greece. The convenience of the parties and

witnesses consideration of the statute takes into considera-

tion the ability of this Court to have witnesses within it’s

subpoena power, and also to have the ability to get witness-

es to come and testify live. At the present situation we have,

I believe, just one witness in the subpoena power of this

court, a party who was sued, not originally in this case, but

was sued some two years after the suit was pending, Salvage

Association employee. The original suit was brought against

Mitsubishi and ABS alone. |

We submit to the Court that several of the Plaintiffs

that are in this suit were also parties of a suit in the Southern

District of New York in the Ieanetis (phonetic) versus

Marika Maritime case in the Southern District of New York

where the Federal District Court considering these facts

found that the factors set forth by Golforell (phonetic) ver-

sus Gilbert for a choice of law and for the Forum Non

Conveniens application of federal law dictated that this case

, be sent to Greece for adjudication. The Court considered that

the last major repairs to the Marika were made in 1993 in

Parias, made by witnesses who reside in Parias, Greece, that

the ship never sailed in the United States. There is no con-

nection of any activity in the United States.

And taking into consideration the public and private

factors, the Court found that the availability of compulsory

process, the possibility to review the premises, of course that

A-12

doesn’t apply this case. But the possibility of the practical

problems that make the action easy to adjudicate here just

don’t exist. Since we don’t have the ability to bring any wit-

nesses, I believe if we try the case here we’ll have no live

witnesses. In fact, the convenience of the parties is further

dictated by the fact that the Plaintiffs themselves refuse to

travel here. As the Court may remember, a year ago we

attempted to get the Plaintiffs in New Orleans to be deposed

and they refused to come here saying it was inconvenient. So

that their own behavior indicates that they don’t want to

come here. I don’t even believe they want to come here for

trial.

The public factors include the burden on this Court of

having to have it’s docket congested with a case involving

foreign nationals and a foreign incident, having jurors from

this parish burdened with having to sit through a several

week trial for a matter that has no concern to them at all.

There is just simply no localized interest to have this matter

heard at Loyola and Poydras. So, we submit to Your Honor

that —

Now, the Plaintiffs have argued that the Ieanetis case

involved the suit against an employer where there was

choice of law, and four are in the contract of the employ-

ment. If you read the Ieanetis case, that was a factor consid-

ered, but it was not the controlling factor. The Court did go

through the Gilbert factors and found that foreign law was

likely to apply, and that theré was just no basis to have this

matter heard, because all the acts occurred outside of the

United States. And we ask the Court that regard to the ques-

tion of what is a proper forum, the Plaintiffs have suggested

that we don’t have — we haven’t picked one. Well, I think

there are four possibles for — that’s a matter that we can

A-13

resolve by having the Plaintiffs file the suit in Greece where

most of the witnesses are with regard to the repairs and the

survey of the ship. The suit could be filed in Canada where

the ship was loaded.

There are issues regarding whether the ship was

properly loaded and whether the cargo shifted at sea causing

the ship to sink. The suit could be brought in Japan where

my Client exist and has all the employees that were involved

in the ship construction who will need to be deposed, or even

the Philippines where the Plaintiffs themselves apparently

don’t want to leave. They want to stay there and have us go

there to depose them. They want to use this court, however,

to litigate their claims and not even show up here.

So, I suggest that any one of those four jurisdictions

would be appropriate. And if the Court needs more briefing

on that, we can provide more information in that regard.

Thank you, Your Honor.

BY MR. GUNTER:

Good morning, Your Honor. David Gunter for the

Plaintiffs in this case. As I read Ieanetis (phonetic) case it

was definitely a forum selection clause case in which the sig-

natories to the contract included the mover Defendant. And

that’s not the case here. Mitsubishi was a shipbuilder. I did-

n’t participate in the contract of employment that contained

the forum selection clause. And I don’t know how it can cite

leanetis, or Lahono (phonetic), or any other employment

contract forum selection clause case, because those facts are

not present here. I’m trying to find out where the inconven-

ience is that Mitsubishi is complaining about. Where is the

beef?

Does Mitsubishi carry it’s burden, and it has a burden

A-14

of showing that it, Mitsubishi, is going to be inconvenienced

by continuing to litigate where this case has been for six

years. I got a reply brief last evening from Mitsubishi in

which Mitsubishi argues that the Plaintiffs are inconve-

nienced. There is not a word in there about Mitsubishi’s

inconvenience. This is a very strange argument.

We were before this Court after the change in the law, ~

Article 123, which was changed in the summer of 1999, and

the Plaintiffs at that time agreed to pay for Mitsubishi’s

expenses to conduct depositions in the Philippines. And I

think that that was the agreement that was reached between

the parties. So, one wonders again, where is the inconven-

ience to Mitsubishi. Defendant didn’t raise Forum Non

Conveniens after the change in the law in June of 1999, but

entered into the agreement that I’m citing to the Court.

I would like to know also, with respect to discovery,

the discovery that’s already been performed in the case, is

that discovery going to be accepted by a new court in a for-

eign country, or are we going to have to re-depose and re-

perform all of the discovery that’s been done at a cost to the

Plaintiffs of millions of dollars.

The Plaintiffs ask in this case, how could there be

Forum Non Conveniens with a Louisiana Defendant in this

case. Once you have a Louisiana Defendant, the Court’s

interest in this case is not slight, it is substantial. And Mr.

Daniels is a bonafide, legitimate, and an important witness

and Party Defendant in this case, who was the last person to

inspect this vessel in South America.

Again, the Forum Selection Clauses and the cases

A-15

which turn on them are irrelevant. The Defendant would like

to pretend that all the parties in this case are foreign, but Mr.

Daniels is within the subpoena power of this court and under

the Porter’s case, 663 F Sub 494, you have to look. The

Courts stress this factor. They stress “Do you have a local

Defendant?” I’ve brought a copy of the Porter case for the

convenience of the Court. As Mitsubishi cited, a single

Louisiana case which says that: “Even though a Defendant is

domiciled in Louisiana the case can be dismissed for Forum

Non Conveniens.” I think the answer is no.

Mitsubishi says the law has changed, but the law has

not changed. You still can’t raise the terms of the contract

you haven’t signed. And you still can’t succeed in Forum

Non Conveniens. Well, one of the principal Defendants

resides in this parish. And Judge DiRosa knew that, and

that’s why he denied the Exceptions. So, as far as the

Plaintiffs are concerned, this case is governed by the law of

the case. And the 1997 order still stands.

We need to take discovery. Discovery needs to be

performed in Japan, the Philippines, Greece, whether the

case is removed or not. How will the dismissal of this case

to one of those other countries make litigation any easier.

We've already agreed to pay for the discovery to be done in

the Philippines. There is a Louisiana Party Defendant. There

are American witnesses. The Defendants contend that all of

the American witnesses have been deposed. We don’t agree

with that. I don’t know how the Defendants can make that

claim. The Defendants themselves have taken depositions in

this country. They went to Chicago, Illinois. They invoked

the authority of this Court and acquiescence in the venue and

the authority of this Court by conducting discovery in this

A-16

country. Ordinary in Forum Non Conveniens they would be

arguing that there isn’t any discovery to be performed in the

United States of America. But they conducted American dis-

covery.

The Plaintiffs selected this forum. That selection

should be accorded deference under the Rich Duke case. The

cite is 734 F sub 142. And this is what the Court said in the

Rich Duke case.

‘“*A district court abuses it’s discretion if it fails to

state exactly what deference it shows to a foreign

Plaintiff.”

So, in this case, a case before this forum for six years

with a local defendant with American witnesses in which

Defendants have noticed and taken depositions here, and

nearly a year has passed since the law changed, which is

Article 123. If Plaintiffs are accorded deference for their

forum selection, what Possible basis could there be for a

dismissal now? Certainly not the cases cited by Mitsubishi.

leanetes (phonetic) is irrelevant. It’s a forum selection clause

case. Lahono (phonetic) for the Louisiana Supreme Court is

another forum selection case. It predates the change in

Article 123, and it proves that — only that for a defendant to

assert forum selection clauses it must have privity of con-

tract, which Mitsubishi doesn’t have. Garcia was a proce-

dural capacity case. It did not involve a Louisiana plaintiff

or defendant. For Forum Non Conveniens purposes it’s use-

less.

The Defendants submit a reply brief which argues that

Forum Non Conveniens should be granted for the conven-

ience of the Plaintiffs. This is an astonishing argument.

A-17

Under Gilbert, the U.S. Supreme Court case, the Defendant

must show that the Defendant is inconvenienced by the

forum. Our Plaintiffs respectfully object and point out that

they have selected this forum for the trial, and that selection

should be accorded deference by the Court. Defendant has

no standing to argue Forum Non Conveniens for the

Plaintiffs.

We all know, Your Honor, that depositions need to be

taken in this case in many countries. Multi-national deposi-

tions do not imply a foreign forum, Your Honor. With wit-

nesses located throughout the world in five countries,

Defendant claims that any one of the four countries are

somehow more convenient than the United States for trial.

And this is baffling and inexplicable to me. All the deposi-

tions can be transcribed and recorded for use here at trial.

And I think that the Court should consider how convenient

it would be to try this case in the Philippines if key witness-

es are located in Greece, Canada, The United States, and

Japan. What is the practical advantage?

And if I might just mention the Piper case, because |

think that’s an important case that the Court would want to

look at. Everything in the Piper case was located in -

Scotland. The accident was there, the witnesses were there,

the Plaintiff families were there. It was a one-nation focus.

And that’s missing here. You don’t have a country where the

accident happened. You have an accident in international

waters, and Defendant points this out. How does a sunk ves-

sel in international waters imply that this forum is inappro-

priate to litigate. We don’t have a center of gravity. And a lot

of these cases are center of gravity cases that turn on one

nation having all of the interest. We’ve got five countries of

interest where there are witness, and one party here. We

A-18

respectfully ask that the Motion to Dismiss be denied.

BY MR. WRIGHT:

Just a couple of points, Your Honor. The Ienetes

(phonetic) case is a Forum Non Conveniens case on the very

facts of this case. The forum selection clause in the contract

is only one of the factors considered, not the controlling fact

of the construed, the Gulf Oil verus Gilbert facts, which

were the cornerstone of maritime Forum Non Conveniens.

The contention by the Plaintiff that there is a Louisiana

defendant, and therefore, we have to stay here, that’s con-

trary to the statute of the legislature which says only that if

the Plaintiff — It says:

“No suit in which a Plaintiff is domiciled in this

state, and which is brought in the court which is

otherwise a court of competent jurisdiction shall

be dismissed under this article.”

It doesn’t anything about a defendant in Louisiana..

The principals of Forum Non Conveniens assume that

there is proper jurisdiction and venue. It’s the power of this

Court in it’s discretion to find a more convenient forum

because, as the Court knows, suits can be brought in many

jurisdictions and the Plaintiff select the jurisdiction. | think

that the jurisdiction was selected here because I believe the

only contact that I saw at the outset of the Louisiana was that

the Plaintiff’s law firm is located here in New Orleans. The

U.S. Supreme Court has recognized that the principal of

Forum Non Conveniens is simply that a Court may resist

imposition upon it’s jurisdiction even when jurisdiction is

authorized by the general venue statute. I submit that it

assumes that we’re in a proper court. It gives this Court the

power to find a more convenient court.

A-19

As far as the issue of discovery, we don’t need to do die-

covery over again. That can be taken care of in the stipulle

tions that are set forth in Section C of Article 123. We can

add a stipulation to that affect, that all discovery will be bend.

ing on all parties that have been taken.

With regard to the depositions in Chicago. the only dep-

ositions that Mitsubishi has noticed were the Planntsff's dep-

ositions here in New Orleans after our Motions to Demme

for Forum Non Conveniens and for Improper Verma deo

missed, and the Plaintiffs refused to come The deponstaon a

Chicago was noticed by the Plaintiff, and not by Mitsubeshe

We attended after already having preserved owr obyectaom: te

Your Honor, the evidence is overwhelming that the: case

doesn't belong here, that it's a foreign deapute betecen for

eign entities. And we don't need to burden the: court and the

citizens of this city with jury duty to resolwe the forengn dee

pute. Thank you very much.

BY THE COURT:

I guess if Ive seen a case that needs to be transferred. «'s

this one. And | guess that was my thought since Iwo tuad the

case and the motion had been densed. so I'm goung to grane

the Motion to Dismiss.

BY MR. WRIGHT.

Thank you, Your Honor

BY THE COURT.

Prepare a Judgment, please

A-20

BY MR. WRIGHT:

Thank you, Your Honor. We'll submit a stipulation in

accordance with the —

BY THE COURT:

Regarding —- Yeah, I don’t know where you want —

BY MR. WRIGHT:

- 123 (C) and circulate that within the time frames of

both statute dates (phonetic. In agreement with the Court as

well

[WHEREUPON THE HEARING CONCLUDED]

REPORTER'S CERTIFICATE

I, Pinkey Ferdinand, Certified Shorthand Reporter, in

and for the State of Louisiana, do hereby certify that the

foregoing transcript was reported to me and transcribed

under my personal direction and supervision, and is a true

and correct transcript to the best of my ability and under-

standing

That | am not of counsel, not related to counsel, nor the

parties hereto, and not in any way interested in the events of

this suit

SIGN THIS 27th day. of December, 2000.

(s/ Pinkey Ferdinand _

Pinkey Ferdinand

Official Reporter, Division “J”

B-|

APPENDIX B

ANGELINA CANTUBA * NO. 2001-CA-1139

VERSUS * COURT OF APPEAL

THE AMERICAN BUREAU OF * FOURTH CIRCUIT

SHIPPING AND MITSUBISHI

HEAVY INDUSTRIES, LTD. * STATE OF

LOUISIANA

ok

* * kK Kk kK *

CONSOLIDATED WITH: CONSOLIDATED

WITH:

MARILYN ALBA DEAN, ET __NO. 2001-CA-1140

AL.

VERSUS

THE AMERICAN BUREAU

OF SHIPPING AND MITSUBISHI

HEAVY INDUSTRIES, LTD.

CONSOLIDATED WITH: CONSOLIDATED WITH:

EKATERINI IOANNIDES, NO. 2001-CA-1141

ET AL.

VERSUS

THE AMERICAN BUREAU

OF SHIPPING AND MITSUBISHI

HEAVY INDUSTRIES, LTD.

CONSOLIDATED WITH: CONSOLIDATED WITH:

MARIVIC R. SILVA, NO. 2001-CA-1142

AVELLINA BESADA, ‘

JOHNATHAN DEAN AND

ADELINA CASINILLO

VERSUS

THE AMERICAN BUREAU

OF SHIPPING AND MITSUBISHI

HEAVY INDUSTRIES, LTD.,

SALVAGE ASSOCIATION,

LTD. AND PAUL FRANCES

DANIEL

APPEAL FROM

CIVIL DISTRICT COURT, ORLEANS PARISH

NOS. 94-16056, C/W 95-19198 C/W 96-28561 C/W 97-70,

DIVISION “J-13”

HONORABLE NADINE M. RAMSEY, JUDGE

**e Ke KK *

JUDGE MICHAEL E. KIRBY

** KK *K *

(Court composed of Judge Miriam G. Waltzer, Judge

Michael E. Kirby, Judge David S. Gorbaty)

DAVID P. GONTAR

RANDY J. UNGAR

GEORGE W. BYRNE, JR. I

UNGAR & BYRNE ‘

365 CANAL STREET ~

SUITE 2520

NEW ORLEANS, LA 70130

COUNSEL FOR PLAINTIFFS/APPELLANTS

——_————t——o—~’~’—s

B-3

JAMES E. WRIGHT, III

ROBERT B. ACOMB, JR.

JONES, WALKER, WAECHTER, POITEVENT, CAR-

RERE & DENEGRE, LLP

201 ST. CHARLES AVENUE

48TH FLOOR

NEW ORLEANS, LA 70170-5100

COUNSEL FOR DEFENDANT/APPELLEE (MIT-

SUBISHI HEAVY INDUSTRIES, INC.)

A. GORDON GRANT, JR.

PHILIP S. BROOKS, JR.

MONTGOMERY, BARNETT, BROWN, READ,

HAMMOND & MINTZ, L.L.P.

3200 ENERGY CENTRE

1100 POYDRAS STREET

NEW ORLEANS, LA 70163

COUNSEL FOR DEFENDANTS/APPELLEES (THE

SALVAGE ASSOCIATION, LTD. AND PAUL FRANCIS

DANIEL

DAVID L. CARRIGEE

BURKE & MAYER

1100 POYDRAS STREET

SUITE 2000 ENERGY CENTRE

NEW ORLEANS, LA 701632000

COUNSEL FOR DEFENDANT/APPELLEE (THE

AMERICAN BUREAU OF SHIPPING)

REVERSED AND REMANDED

Plaintiffs appeal the dismissal of their lawsuits on the

basis of forum non conveniens, more than six years after the

filing of said lawsuit.

B-4

STATEMENT OF THE CASE

The M/V MARIKA, a bulk carrier measuring 919 feet

in length loaded with 140,000 tons of pelletized iron ore,

sank in international waters on January 1, 1994 in a North

Atlantic winter storm. The MARIKA, a vessel registered in

Liberia, was on a voyage from Canada to the Dutch port of

Ijmuniden. The MARIKA and all its Greek and Philippine

seamen were lost. The vessel was built in Japan by defen-

dant-appellee Mitsubishi Heavy Industries, Ltd.

The surviving families brought suit on October 13, 1994

in Civil District Court in Orleans Parish against the

American Bureau of Shipping, the Salvage Association, Paul

Francis Daniel and Mitsubishi Heavy Industries, Ltd.

From the filing of this lawsuit in 1994 to December

2000, the date on which it was dismissed on the grounds of

forum non conveniens, numerous interrogatories were pro-

pounded and answered, depositions were taken, and numer-

ous motions were made. Especially noteworthy are motions

made by the defendants that invoked the court’s authority

and requested judicial relief.

On June 30, 1999, the Louisiana Legislature’s Act 536

which amended LSA-C.C.P. art. 123 became effective, per-

mitting dismissal of maritime suits for forum non conve-

niens. On November 2, 2000, Mitsubishi filed a Motion to

Dismiss for forum non conveniens. The matter came before

the trial court on December 8, 2000. After hearing oral argu-

ment, the trial court granted the motion without reasons for

judgment. Plaintiffs appeal this Judgment.

STATEMENT OF THE LAW

The standard of review in this case is whether the trial

judge abused her discretion. The abuse of discretion standard

of review is appropriate because La. C.C.P. art. 123, which

treats forum non conveniens, permits — it does not mandate

— that a case be transferred if certain conditions are fulfilled.

This gives the trial judge the discretion to grant the motion

to transfer or not, and we review whether or not that discre-

tion was abused. A.0. Smith Corp. v. American Alternative

Insurance Corp., 2000-2485 (La. App. 4 Cir. 12/27/00), 778

So.2d 615, 619, writ denied, 2001-0275 (La. 3/23/01), 787

So.2d 321; Piper Aircraft Company v. Reyno, 454 U.S. 235,

257, 102 S.Ct. 252, 266, 70 L.Ed.2d 419, 436 (1981); Karim

v. Finch Shipping Company, Ltd., 265 F.3d 258, 2001

A.M.C. 2618 (Sth Cir. 9/5/01).

Plaintiff assigns several errors in the granting of defen-

dants motion to dismiss for forum non conveniens, La.

C.C.P. art. 123. They argue the motion to dismiss was

untimely, it ignored the age of the case and the presence of a

Louisiana defendant. They argue the defendant failed to

establish that there was another adequate alternative forum.

The defendants also make several other arguments, includ-

ing a constitutional argument. We find the most compelling

argument to be that the motion was untimely and the trial

court ignored the age and status of the case.

Defendant, Mitsubishi, argues that La. C.C.P. art. 123

prescribes no time limit for bringing a dismissal for forum

B-6

non conveniens. They also cite a Federal case from the

Southern District of New York!, arising out of this sinking,

which has very little precedential value outside of that state.

While it is true Defendant filed a motion to dismiss for

forum non conveniens in March of 1997, a few years before

the Amendment to art. 123, we view this as highlighting the

fact that with all the more reason defendant should have re-

filed its motion to dismiss after the statute had been amend-

ed permitting such a dismissal.

_ The parties in a civil suit are charged with knowledge of

the law. Succession of Moore v. Moore, 387 So.2d 1231

(La.App. 1 Cir. 1980). The Amendment to La. C.C.P. art.

123, which allows for dismissal of admiralty cases via forum

non conveniens, became effective on June 30, 1999. Nearly

a year and a half after the Amendment, on November 2,

2000, the defendant, Mitsubishi, filed its motion to dismiss

for forum non conveniens. Because the defendant is charged

with knowledge of the law, the fact that Mitsubishi may have

filed a motion to dismiss years before the Amendment is not

very relevant. The appropriate time to file would have been

immediately following the amendment, We find that in a

case that is six years old, to delay for an additional sixteen

(16) months before filing a motion to dismiss based upon an

amendment in the law is so dilatory as to be unconscionable.

We find the plaintiffs also correctly noted that defendant

had acquiesced in jurisdiction and venue. By filing pleadings

and noticing depositions subsequent to the momenta motion .

| Joannides v. Marika Maritime Corp., 928 F. Supp. 374 (S.D.NLY.

1996).

ee a eee oe ee ee es ee

B-7

to dismiss on the basis of forum non conveniens might have

been filed, defendant waived any right to petition the court

for such relief.

Waiver exists when there is: (1) an existing right, bene-

fit or advantage; (2) knowledge of its existence and (3) actu-

al intent to relinquish the right, which can be inferred from

conduct. See, Salzstein v. Bekins Van Lines, Inc., 993 F.2d

1187 (5th Cir. 1993). Mitsubishi knew of its right in June of

1999 to seek dismissal, but filed pleadings and sought judi-

cial relief from the tribunal it now seeks to escape.

We find that the defendants waived their right to argue

forum non conveniens and/or are estopped from doing so

when they invoked the authority of the trial court five times

after the time the Amendment to La. C.C.P. art. 123 became

effective. The last of these acts, the notices of deposition,

were filed seven months after the effective date of the act.

Specifically, Mitsubishi filed the following after the

amendment: two motions for extension of time to answer

interrogatories, the latter request was granted; a “notice of

depositions” of plaintiffs; a memorandum in opposition to

plaintiffs motion to quash, said deposition specifically

invoking the authority of the trial court and requesting judi-

cial relief, and finally, another “notice of depositions” of five

witnesses.

Authority exists supporting the importance of a timely

filing of a motion for forum non conveniens. The United

States Court of Appeals for the Fifth Circuit stated:

B-8

We believe ... that the better rule would be that a

defendant must assert a motion to dismiss for forum

non conveniens within a reasonable time after the

facts or circumstances which serve as the basis for the

motion have developed and became known or rea-

sonably knowable to the defendant. See, Wright,

Miller & Cooper, Fed. Practice and Procedure:

Jurisdiction § 3828, at 291 (2d Ed. 1986); Cf.

Creamer v. Creamer, 482 A.2d 346, 352 (D.C. App.

1984). In Re Air Crash Disaster at New Orleans, La.,

821 F.2d 1147, 1987 A.M.C. 2735 (Sth Cir. 1987).

Further, “[U]ntimeliness ... should weigh heavily

against the granting of the motion to dismiss for

forum non conveniens because a defendant’s dilatori-

ness promotes and allows the very incurrence of costs

and inconveniences the doctrine is meant to relieve.”

In Re Air Crash Disaster, supra, 821 F.2d at 1165.

The moving defendant must submit its motion in

a timely manner.

In Re Air Crash Disaster, supra, 821 F.2d at 1165.

Here, defendants had almost five years to ascertain

the facts and circumstances surrounding the motion to dis-

miss. We find this was more than sufficient time. Therefore,

when the Amendment to La. C.C.P. art. 123 was enacted,

defendant should have acted within a reasonable amount of

time. We find the delay of sixteen months, tacked onto

almost five years, is unreasonable.

It has long been the holding of this court that laches

B-9

is the “neglect for unreasonable length of time to do what

should have been done” Triangle Oil Co. v. City of New

Orleans, La. App. 5 So.2d 558, 561, 562; See also Sherlock

v. Ocean Salvage Corp., 2000-0886 (La.App. 4 Cir.

3/28/01), 785 So.2d 932; Metro Riverboat Associates, Inc. v.

Louisiana Gaming Control Bd., 1999-2241 (La.App. 1 Cir.

3/7/01), 798 So.2d 143; Landry v. Latter, 2000-0100

(La.App. 4 Cir. 12/29/00), 780 So.2d 450. We find the delay

of sixteen months after five years of litigation to be so dila-

torious as to make it an abuse of discretion to grant a motion

to dismiss for forum non conveniens.

This case was filed and has been acted upon in Civil

District Court since 1994. Whether it be by laches, waiver or

estoppel, we find that the trial court abused its discretion in

dismissing this case on a Motion to Dismiss for forum non

conveniens that was filed nearly a year and a half after the

Amendment to art. 123, and six years after the start of this

litigation.

For the aforementioned reasons, we reverse and -

remand for proceedings in accord with this opinion.

REVERSED AND REMANDED

C-]

APPENDIX C

The Supreme Court of the State of Louisiana

ANGELINA CANTUBA

VS. NO. 2002-C-0743

THE AMERICAN BUREAU OF SHIPPING AND

MITSUBISHI HEAVY INDUSTRIES, LTD.

AND OTHER CONSOLIDATED CASES

IN RE: Mitsubishi Heavy Industries Ltd.; - Defendant;

Applying for Writ of Certiorari and/or Review, Parish of

Orleans, Civil District Court Div. J, Nos. 94-16056, 95-

19198, 96-21561, 97-00070; to the Court of Appeal, Fourth

Circuit, No(s). 2001-CA-1139, 2001-CA-1140, 2001-CA-

1141, 2001-CA-1142

May 10, 2002

Denied.

Supreme Court of Louisiana

May 10, 2002

/s/ Katherine A. Fontana

Deputy — Clerk of Court

For the Court

D-1

APPENDIX D

Art. 123. Forum non conveniens

A. For the convenience of the parties and the wit-

nesses, in the interest of justice, a district court upon contra-

dictory motion, or upon the court’s own motion after contra-

dictory hearing, may transfer a civil case to another district

court where it might have been brought; however, no suit

brought in the parish in which the plaintiff is domiciled, and

in a court which is otherwise a court of competent jurisdic-

tion and Proper venue, shall be transferred to any other court

pursuant to this Article.

B. Upon the contradictory motion of any defendant in

a civil case filed in a district court of this state in which a

claim or cause of action is predicated upon acts or omissions

originating outside the territorial boundaries of this state,

when it is shown that there exists a more appropriate forum

outside of this state, taking into account the location where

the acts giving rise to the action occurred, the convenience

of the parties and witnesses, and the interest of justice, the

court may dismiss the suit without prejudice; however, no

suit in which the plaintiff is domiciled in this state, and

which is brought in a court which is otherwise a court of

competent jurisdiction and proper venue, shall be dismissed

pursuant to this Article.

C. In the interest of justice, and before the rendition

of the judgment of dismissal, the court shall require the

defendant or defendants to file with the court a waiver of any

defense based upon prescription that has matured since the

commencement of the action in Louisiana, provided that a

D-2

suit on the same cause of action or on any cause of action

arising out of the same transaction or occurrence is com-

menced in a court of competent jurisdiction in an appropri-

ate foreign forum within sixty days from the rendition of the

judgment of dismissal. Such waiver shall be null and of no

effect if such suit is not filed within this sixty-day period.

The court may further condition the judgment of dismissal to

allow for reinstatement of the same cause of action in the

same forum in the event a suit on the same cause of action

or on any cause of action arising out of the same transaction

or occurrence is commenced in an appropriate foreign forum

within sixty days after the rendition of the judgment of dis-

missal and such foreign forum is unable to assume jurisdic-

tion over the parties or does not recognize such cause of

action or any cause of action arising out of the same trans-

action or occurrence. Amended by Acts 1999, No. 536, § 1,

eff. June 30,1999.

Retroactive application-Acts 1999, No. 536

Section 2 of Acts 1999, No. 536 (§ 1 of which ameno

pars. B and C of this article) provides:

“This Act is declared to be remedial, curative, and

procedural and therefore is to be applied retroactively

as well as prospectively.

Historical and Statutory Notes

Acts 1999, No. 536, § 1, rewrote par. B as pars. B

and C and deleted former par. C. Prior to amendment,

pars. B and C provided:

“B. Except as provided in Paragraph C, upon the

contradictory motion of any defendant in a civil case

filed in a district court of this state in which a claim

D-3

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statute and re based eprom acte of cummetnome crrygytae

ing outexde of thee state, when « « shows Gus Gere

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taking into account the kxstom where Ge ache grown

nec to the acon cxccurted the comvemneme of Ge

Parts ard wrtmenes amd the mtereet of pumas te

court may drums ter cast without prepadue owes

Ct, fo syst on whach tae pllsantrff ve commen nied a fee

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E-1

APPENDIX FE

Ekaterini JOANNIDES, Individually, and as Personal

Representative of the Estate of Dimitrios loannides,

Deceased, et al., Plaintiffs,

Vv.

MARIKA MARITIME CORP.,

et al., Defendants.

95 Civ. 1795 (LAK).

United States District Court,

S.D. New York.

June 12, 1996.

Relatives and personal representatives of deceased crew

members who died when Liberian flag vessel sank in inter-

national waters brought suit secking to recover under the

Death on the High Seas Act (DOHSA) and general maritime

law. On motion to dismiss on pround of forum non conve-

mens, the District Court, Kaplan, J., held that dismissal on

ground of forum non conveniens was appropriate, consider-

img that all critical events at issue took place in Greece, and

that the United States had little interest in providing forum

for case brought on behalf of Greek seamen who shipped

aboard Libenan vessel crewed by Greck company engaged

exclusively m carrying cargos to and from non-United States

ports.

Moton granted.

E-2

1. Federal Courts ~ 45

Faced with forum non conveniens motion, court must

make threshold determination whether alternative forum

exists in which case may be heard; assuming there is such

forum, court must then balance series of private and public

interests in determining whether to retain case or dismiss it

in favor of alternative forum.

2. Federal Courts «> 45

In determining whether to grant forum non conveniens

motion, important considerations are: relative ease of access

to sources of proof; availability of compulsory process for

attendance of unwilling, and costs of obtaining attendance of

willing, witnesses; possibility of view of premises, if view

would be appropriate to action; and all other practical prob-

lems that make trial of case easy, expeditious and inexpen-

sive.

3. Federal Courts 44

Plaintiffs choice of foram ordinarily is given great

weight in deciding forum non conveniens motion.

4. Federal Courts 45

Suit brought by relatives and personal representatives

of deceased crew members who died when Liberian flag

vessel sank in international waters would be dismissed on

ground of forum non conveniens, considering that plaintiffs,

who were Greek nationals, had adequate alternative forum in

Greece, that all critical events occurred in Greece, and that

all persons indicated to have knowledge of events were

located in Greece; moreover, it was likely that Greek law

would govern case, and United States had little interest in

providing forum for case brought on behalf of Greek seamen

E-3

who shipped aboard Liberian vessel crewed by Greek com-

pany which was engaged exclusively in carrying cargo to

and from non-United States ports.

Paul S. Edelman, Kreindler & Kreindler, New York

City, for Plaintiffs.

Patrick J. Bonner, Freehill, Hogan & Mahar, New York

City, for Defendants Marika Maritime Corp., Astron

Management Corp., Atlantic Maritime Enterprises, S. A. and

Thomas Peter Pappas.

Michael D. Wilson, Michael J. Walsh, Pamela L.

Milgrim, Kirlin, Campbell & Keating, New York City, for

Defendant American Bureau of Shipping.

MEMORANDUM OPINON

KAPLAN, District Judge.

On New Year’s Day 1994, the M/V MARIKA

foundered and sank in international waters some 700 miles

east of Newfoundland with the loss of all hands. Plaintiffs—

relatives and the personal representatives of five deceased

crew members, all of whom were Greek nationals here seek

to recover under the Death on the High Seas Act

(“DOHSA”), 46 U.S.C. §§ 761 et seg., the Jones Act, 46

U.S.C. § 688, and the general maritime law against the ves-

sel’s owner, others affiliated with it, and the American

Bureau of Shipping (“ABS”) on various theories. The defen-

dants move to dismiss the action under the doctrine of forum

non conveniens and, in some instances, on other bases.

E-4

Facts

Parties

The plaintiffs, as noted, all are Greek nationals and fam-

ily members of seamen who died in the sinking. They sue

both individually and as personal representatives of the

decedents.

Defendant Marika Maritime Corp. (“Marika”) is a

Liberian corporation which is alleged to have owned and

operated the M/V MARIKA at all relevant times. (Cpt 11 2,

6-7) It employed the crew, including plaintiffs’ decedents.

(De Luca Aff. ¥ 8) It is important to note that the MARIKA

did not carry cargo to or from, or engage in trade in, the

United States while owned by Marika. (/d. J 7) Defendants

Atlantic Maritime Enterprises, S.A. (“Atlantic”) and Astron

Management Corp. (“Astron”), which are Greek and

Connecticut corporations respectively, both performed vari-

ous tasks and functions for Marika including assisting with

financing, chartering, crewing, engineering and day-to-day

operations. (Bonner Aff. 4) Atlantic, which has an office in

the Greek port of Piraeus, handled crewing matters, mainte-

nance, repairs, surveys and insurance matters. Astron was

involved in financing and chartering. (De Luca Aff. § 3—4)

Thomas Peter Pappas is a Greenwich, Connecticut, resident

who is alleged to control, and to be the alter ego of, Atlantic,

Astron and Marika. (Cpt § 13)

ABS is a not-for-profit classification society created

in 1862 by act of the New York Legislature for the purpose

of promoting the security of life and property at sea.!

(Bourneuf

|. “Classification societies are defined as ‘organized societies which

undertake to arrange inspections and advise on the hull and machinery

of a vessel from its initial stages in new building and thereafter.

E-5

Aff. § 2) It has offices in more than eighty countries around

the world, including an office in Piraeus, Greece. (/d.) It

establishes and administers standards for plan review, con-

struction survey and periodic survey of merchant ships and

other marine vessels and structures. (/d.)

The Events Here At Issue

The last major repairs to the MARIKA were made dur-

ing the period March 12 through April 16, 1993 in Piraeus

(Kopsinis Aff. § 9) at which time Dimitrios Lambros and

Christos Nomikos, surveyors in ABS’s Piraeus office, con-

ducted several classification and statutory surveys? aboard

the MARIKA (Bessis Ded. {ff 3, 19) Vasilios Spyridonos of

Atlantic was present on behalf of Atlantic. ( ¥ 5) Assodivers,

I & T Kalogeridis, Ultratest Marine Technical Bureau, and

Electromarine Co. of Piraeus—all based in Piraeus,

Greece—performed repairs on the vessel or assisted ABS. (

Id. J] 6-20; Kopsinis Aff. J 9-14)

The plaintiffs, to the extent revealed by the record, all

signed on to the MARIKA in Piraeus at various dates on or

(footnote | continued)

The societies produce a certificate concerning the vessel’s seaworthiness

in accordance to the trade within which it is intended to, or does, work.’

The societies’ classification does not extend to manning or operation of

a vessel.” Damien L. O’Brien, The Potential Liability of Classification

Societies to Marine Insurers Under United States Law, (7 U.S.F. Mar.

L.J. 403 (1995) (quoting Eric SULLIVAN, THE MARINE ENCYCLO-

PEDIA DICTIONARY 78 (/980)).

2. Classification surveys are surveys required by ABS rules. Statutory

surveys are surveys required by the nation of a vessel’s registration, here

Liberia.

E-6

after December 7, 1992. All entered into contracts of

employment with Marika which were expressly subject in

certain respects to the Greek Collective Agreement, a col-

lective bargaining agreement,> and which provided that

Greek law governed and “absolutely prohibited” recourse to

courts of countries other than Greece. (Kopsinis Aff. ] 6 &

Exs. B1, B2)

On December 24, 1993, the MARIKA loaded 140,000

metric tons of iron ore at Seven Islands, Canada, and sailed

for Ijmuiden, the Netherlands, on December 27, 1993. (Cpt

q 25) As noted, the ship was lost with all hands on January

1, 1994. Ud. J 26)

Shortly after the sinking, the vessel’s owners, operators,

agents and insurers engaged Spyridon Karakitsos, an attor-

ney and partner in the Greek law firm Deucalion Rediadis

and Sons. Karakitsos promptly negotiated settlements and

obtained releases from three of the five plaintiffs in this case.

As a portion of each settlement was allocated to claims

under Greek Workers Compensation Law, each was

approved by the Greek court. The settlements ranged from

the U.S. dollar equivalents of $113,300 to $255,000.

(Karakitsos Decl. {J 1-20) Plaintiffs now dispute the

enforceability of the releases they gave.

This Action

Plaintiffs commenced this action in this Court in 1995.

They seek recovery on the theory that the defendants were

3 See Damigos v. Flanders Compania Naviera, S.A.-Panama, 716

F.Supp. 104, 106 (S.D.N.Y. 1989); Kanagaratnam v. Vialogro

Compania Naviera, S.A., No. 82 Civ. 2795(CSH), 1984 WL 735, at *3

(S.D.N.Y. Aug. 6, 1984).

E-7

negligent in sailing the MARIKA into the North Atlantic in

January and in failing to keep her in good repair (am cpt

4] 28), that she was unseaworthy (id. 29), and that ABS was

negligent in surveying the vessel and in allowing it to sail

into the North Atlantic in January (id. J 30).4

Discussion

Defendants’ forum non conveniens motion proceeds in

significant part from the premise that the crux of this action

is the events that occurred, or did not occur, when the

MARIKA was in Piraeus in March and April 1993 for sur-

vey and repair. All of the witnesses to those events, many of

whom are not parties, as well as the plaintiffs, are in Greece.

The Court, they point out, cannot compel any of the non-par-

ties to come to New York for trial, and the cost of bringing

any witnesses willing to appear would be exorbitant. They

rely on the forum selection and choice of law clauses in the

decedents’ employment contracts. They argue also that

Greece has a far stronger interest in this matter than the

United States, that the action is governed by Greek law, and

that the Court should not needlessly undertake difficult

choice of law issues that could be avoided by forum non con-

veniens dismissal.

Plaintiffs perspective, not surprisingly, is entirely differ-

ent. Although tacitly conceding the centrality of the events in

Piraeus and the fact that the witnesses to those events all are

in Greece, they contend that the MARIKA was owned and

4. Separate actions regarding the cargo lost with the MARIKA, brought

by different plaintiffs, which had been pending before this Court have

been settled.

LES eee Or Ld Tere

E-8

operated by the Pappas interests—Pappas, Astron, Atlantic

and Marika from a base in the New York area and flew the

Liberian flag merely as a matter of convenience. They seek

also to portray Pappas as an unscrupulous operator whose

ships have had a dismal safety record and who seeks to hide

behind a shield of foreign law. They therefore emphasize

their contention that needed repairs were not made, presum-

ably at the direction of Pappas or his New York area col-

leagues. They contend that U.S. law governs the matter,

placing heavy reliance on Hellenic Lines Ltd v. Rhoditis, 398

U.S. 306, 90 S.Ct. 1731, 26 L.Ed.2d 252 (1970). And they

contend that the forum selection clause in the employment

contracts is void under European law.

[1,2] The principles articulated in Gulf Oil Co. v. Gilbert

330 U.S. 501, 67 S.Ct. 839, 91 L.Ed. 1055 (1947), govern

defendants’ forum non conveniens motion notwithstanding

that this is a maritime case in which a Jones Act claim is

asserted. Cruz v. Maritime Co. of Philippines, 702 F.2d 47,

48 (2d Cir. 1983);5 Alcoa S.S. Co. v. M/V Nordic Regent 654

F.2d 147, 153, 159 (2d Cir.), cert denied, 449 U.S. 890, 101

S.Ct. 248, 66 L.Ed.2d 116 (1980). The Court must make a

threshold determination whether an alternative forum exists

in which the case may be heard. Eg., Piper Aircraft Co. v.

Reyno, 454 U.S. 235, 254 n. 2, 102 S.Ct. 252, 265 n. 2, 70

L.Ed.2d 419 (1981); see Gilbert, 330 U.S. at 506-07, 67

S.Ct. at 842-43. Assuming there is such a forum, the Court

5. Plaintiffs invite this Court to “reconsider” Cruz. It may not do so.

Plaintiffs’ argument would be addressed more properly to the Court of

Appeals.

E-9

then must balance a series of private and public interests in

determining whether to retain the case or dismiss it in favor

of an alternative forum:

“Important considerations are the relative ease of

access to sources of proof; availability of compulso-

ry process for attendance of unwilling, and the cost of

obtaining attendance of willing, witnesses; possibili-

ty of view of the premises, if view would be appro-

priate to the action; and all other practical problems

that make trial of a case easy, expeditious and inex-

pensive. There may also be questions as to the

enforceability of a judgment if one is obtained. The

court will weigh relative advantages and obstacles to

fair trial. It is often said that the plaintiff may not, by

choice of an inconvenient forum, ‘vex’, ‘harass’, or

‘oppress’ the defendant by inflicting upon him

expense or trouble not necessary to his own right to

pursue his remedy. But unless the balance is strongly

in favor of the defendant, the plaintiffs choice of

forum should rarely be disturbed.

“Factors of public interests also have a place in

applying the doctrine. Administrative difficulties fol-

low for courts when litigation is piled up in congest-

ed centers instead of being handled at its origin. Jury

duty is a burden that ought not to be imposed upon

the people of a community which has no relation to

the litigation. In cases which touch the affairs of

many persons, there is reason for holding the trial in

their view and reach rather than in remote parts of the

E-10

country where they can learn of it by report only.

There is a local interest in having localized contro-

versies decided at home. There is an appropriateness,

too, in having the trial of a diversity case in a forum

that is at home with the state law that must govern the

case, rather than having a court in some other forum

untangle problems in conflict of laws, and in law for-

eign to itself.” 330 U.S. at 508-09.

Availability of Alternative Forum

ABS has submitted an extensive affidavit of John D.

Markianos-Daniolos, a Greek law- ...

F-]

APPENDIX F

CIVIL DISTRICT COURT FOR THE

PARISH OF ORLEANS

STATE OF LOUISIANA

NO. 94-16056 DIVISION “J”

ANGELINA CANTUBA, ET AL

VERSUS

THE AMERICAN BUREAU OF SHIPPING

AND MITSUBISHI HEAVY INDUSTRIES, LTD.

FILED:

DEPUTY CLERK

DECLINATORY EXCEPTIONS OF LACK OF

IN PERSONAM JURISDICTION AND IMPROPER

VENUE SUBMITTED ON BEHALF OF

MITSUBISHI HEAVY INDUSTRIES, LTD.

MAY IT PLEASE THE COURT:

NOW INTO COURT, through undersigned counsel,

comes defendant, Mitsubishi Heavy Industries, Ltd. (here-

inafter “Mitsubishi”), who, with respect, moves this Court to

dismiss the present suit against Mitsubishi because this

Court lacks in personam jurisdiction over said defendant and

the Court lacks venue in the case. Mitsubishi relies on the

affidavit of Mr. Hotta attached to its motion to quash service

of process. The exercise of in personam jurisdiction over

F-2

Mitsubishi is improper under both the Louisiana Long Arm

Statute and the due process clause of the United States

Constitution in that the grounds upon which these suits are

predicated do not “arise from” any contact which Mitsubishi

has had with the forum as is required by Louisiana law; nor

is the exercise of in personam jurisdiction proper within the

considerations of due process for the reason that Mitsubishi

has not had sufficient minimum contacts with this forum,

and has not affirmatively invoked the privileges and protec-

tions of this forum; nor is Mitsubishi Heavy Industries, Ltd.

“doing business” in Louisiana.

Mitsubishi shows that this Court lacks venue over it

since nothing involved in this ancient ship construction con-

tract took place in Louisiana. The plaintiffs are not residents

of Louisiana and the sinking of the vessel did not occur here.

For the above and foregoing reasons, the exercise of

in Personam jurisdiction over Mitsubishi Heavy Industries,

Ltd. would not be proper and since venue over Mitsubishi is

lacking, this Court should dismiss this case against defen-

dant, Mitsubishi Heavy Industries, Ltd.

/s/ Robert B. Acomb, Jr.

ROBERT B. ACOMB, JR., T.A. (#02304)

RICHARD D. BERTRAM (#17881)

Jones, Walker, Waechter,

Poitevent, Carrére & Denégre, L.L.P.

201 St. Charles Avenue, 48th Floor

New Orleans, Louisiana 70170-5100

(504) 582-8000

ATTORNEYS FOR DEFENDANT,

MITSUBISHI HEAVY INDUSTRIES,

LTD.

F.-3

CERTIFICATE OF SERVICE

I hereby certify that a copy of the above and forego-

ing pleading has been served upon all counsel of record by

hand delivery and/or by depositing same in the Unsed States

mail, postage prepaid and properly addressed, this 2) day of

February, 1995.

THE AMER 4% 81 EE At OF COPT TW.

AND MITOL BROS HE a) EO OT ERTS Erm

nmusD

oerery (lee

MEMORANDEM (% 08 FFOET OF Bee Leta rOmy

EXCEPTIONS OF LACK OF &% PERREAN

FURISDEC TION 48D NEPROWER ENE e

SLBMITILD OM BEMALS OF MIT SE RENEE BEet }

MDL ST RIES LTR

MAY IT PLEASE THe COURT

Whoercvafbveeity 8 bagprennenew sccrmprerrunnenny weet ta eugpantnnened

ofBece ae Talk pe, Dagan test catinennt ae flee me © a gi

ee cad

tend comme oe emepreger of fee ame

ht es requeete to distinguish venue from jurisdiction.

Semply because 2 defendam may be “found™ in the forum for

perpose: of purmdacton docs not necessanly mean that the

letagation showld be ted im the forum. Venue relates to a

determenaton of the place of forum where the action should

be brought. Murphoe » Misuesipp: Pub Court, 149 F.2d 189

(Se Cee 1945), inpermatonal Bus Coord. Inc. vy Aameo

Auto. Trams. Inc. 305 F. Supp. 361 (SDNY. 1969).

Therefore. even of thes Court would find that jurisdiction

over Metewteets « proper mn the forum. whch Mitsubssh:

etromgty domes. « may etal! fond that the forum 1 not proper

we reopen t to vomur

The most pervasive criterion within the concept of

vemur « the dactreme of form pon convemens The leading

authorty om forum mon convemens Gulf Oil Com. v.

Gilbert, 190 U.S. 901 (1947). Although Gilbert involved the

voome of whem ome dommesta forwm me morte convement than

amottnet tmarweme law hae adopted the doctrume of forum oon

vonvemen # eupowond a Caliber and the courte have dis:

mmiened actacime qmder the dow trame of forum gon cogvemens

whom Gury have found « formgn forum to be the proper onc

Alooa 3.5. Co. Ie ’s MV NORDIC REGENT, 654 F.2d

147 Cd Cu 1980), Emzgerald y Teamco, $21 F.2d 448 (2d

Ce 1975) Pape Op. Comeut. tt. Lad» 3.5 HONG

KONG AMBER. $13 F 24 667 (9 Cur 1975). Enzgerald vy

Westhead Maree Comp. 09 F 2d 449 (2d Cor 1966), Allianz

SS

F-6

Versicherungs_v. S.S. ERKISEHIR, 334 F. Supp. 1224

(S.D.N.Y. 1971) ; Transomnia G.M.B.H. v., M.S. TORYA,

311 F. Supp. 751 (S.D.N.Y. 1970); Scherkat Tazomoni Auto,

Internach_v. Hellenic Lyons, Lid.. 227 F. Supp. 462

(S.D.N.Y. 1967).

A rough checklist has been established by these lower

courts which have been wrestling with the issue of forum

non conveniens when the issue involved is whether the most

appropriate forum is a foreign one. Those contacts deemed

the most important by the courts in granting a dismissal on

the grounds of forum non conveniens were as follows:

1. Nationality of plaintiffs and defendants.

2. Availability of a foreign forum.

3. Residences of witnesses and access to sources of

proof.

4. Availability of compulsory process for attendance of

foreign witnesses.

5. Cost of obtaining testimony of foreign witnesses.

6. Where the incident occurred.

In light of the considerations stated by the courts, it ts

clear that Japan would be the proper forum for purposes of

venue in which to litigate this matter against Mitsubishi. The

instant suit against Mitsubishi should be dismissed on the

grounds of forum non convemens because:

1. Plaintiffs involved in this claim are from the

F-7

Philippines. The defendant, Mitsubishi, is a Japanese corpo-

ration whose shipyard is in Japan.

2. The Japanese forum is available.

3. Any witnesses with regard to the construction of the

vessel are residents of Japan.

4. The fact witnesses in regard to the construction of the

vessel are all in Japan.

5. The accident occurred off the coast of

Newfoundland, Canada.

6. The present location of the vessel is off the

Newfoundland coast, thus access to it as a source of proof

would be clearly more readily available in Newfoundland,

Canada, than in Louisiana.

7. The costs of obtaining witnesses’ testimony will be

less expensive if this matter is tried in either Japan or

Canada. As has already been stated, most of the witnesses

and sources of proof are in either of those two locations.

The affidavit of Mr. Hotta previously attached to the

Memorandum in Support of the Motion to Quash Service of

Process clearly demonstrates that Japan is the proper forum

for determination of the claims involved in this matter. In

addition to the checklist already considered, there are sever-

al other factors which weigh heavily in favor of a dismissal

of Mitsubishi from these cases on grounds of improper

venue. Mitsubishi did not contract in Louisiana to construct

F-8

a vessel. None of these business entities were organized or

licensed to do business in this forum. Further, all payments

made pursuant to the contract were made in Japan in

Japanese yen.

IV. CONCLUSION

Plaintiff has sought to invoke the jurisdiction of this

Court and, therefore, have the burden of establishing that in

personam jurisdiction exists. Clearly, under the facts of this

case, such jurisdiction does not exist and the laws of

Louisiana do not confer jurisdiction over the person of

Mitsubishi for the reason that this suit does not arise out of

Mitsubishi’s transacting business within Louisiana. Further,

any slight contacts of Mitsubishi with Louisiana are so

insubstantial and minimal that the assertion of jurisdiction

over the Japanese corporation does not purport with either

the statutory requirements of the Louisiana Long Arm

Statute or the basic due process requirements of the United

States Constitution. :

Mitsubishi further shows that this Court lacks venue

over it in Louisiana.

For the above stated legal. and factual reasons, it is

respectfully requested that this Court dismiss this suit

against Mitsubishi for lack of in personam jurisdiction and

for lack of venue.

F-9

Respectfully submitted,

/s/ Robert B. Acomb, Jr.

ROBERT B. ACOMB, JR., T.A. (#02304)

RICHARD D. BERTRAM (#17881)

Jones, Walker, Waechter,

Poitevent, Carrére & Denégre, L.L.P.

201 St. Charles Avenue, 48th Floor

New Orleans, Louisiana 70170-5100

(504) 582-8000

ATTORNEYS FOR DEFENDANT,

MITSUBISHI HEAVY INDUSTRIES,

LTD.

CERTIFICATE OF SERVICE

I hereby certify that a copy of the above and foregoing

pleading has been served upon all counsel of record by hand

delivery and/or by depositing same in the United States mail,

postage prepaid and properly addressed, this 2] day of

February, 1995.

/s/ B. r.

G-]

APPENDIX G

CIVIL DISTRICT COURT FOR THE

PARISH OF ORLEANS

STATE OF LOUISIANA

NO. 94-16056 DIVISION “J”

ANGELINA CANTUBA, ET AL

VERSUS

THE AMERICAN BUREAU OF SHIPPING

AND MITSUBISHI HEAVY INDUSTRIES, LTD.

CONSOLIDATED WITH

NO. 95-19198 DIVISION “K”

MARILYN ALBA DEAN, ET AL

VERSUS

THE AMERICAN BUREAU OF SHIPPING, ET AL

FILED:

DEPUTY CLERK

EXCEPTIONS OF MITSUBISHI HEAVY

INDUSTRIES, LTD.

OF NO RIGHT OF ACTION AND TO DISMISS THE

PETITION ON THE GROUND OF FORUM NON

CONVENIENS

G-2

NOW INTO COURT, through undersigned counsel,

comes Mitsubishi Heavy Industries, Ltd. (hereinafter

"MHI"), who respectfully submits that the Jones Act,

General Maritime law, state law, and foreign law claims of

plaintiffs, Marilyn Alba Dean and others (hereafter

Philippines plaintiffs), should be dismissed on the excep-

tions of No Right of Action, C.C.P. 927(5) because such

causes of action are not available to the Philippines plaintiffs

pursuant to the express dictates of Section (b) of the Jones

Act, 46 U.S.C. §688(b) and under the general maritime law

of the United States. Alternatively, the petition in the above

captioned and numbered matter should be dismissed on the

ground of forum non conveniens because the matter involves

claims governed solely by Greek or other foreign law, by

Philippines citizens who are nonresident diens, and employ-

ees of a Greek corporation, for claims allegedly resulting

from the January 1, 1994 sinking of a Literian flagged ves-

sel, the MARIKA 7, on the high seas off the coast of Canada

and because the forum selected by the Philippines plaintiffs

is not convenient to any party and there exists an available,

adequate, and more appropriate forum in Greece where law

claims applicable to this controversy a@n be heard and

resolved.

WHEREFORE, defendant, MHI, prays that its excep-

tion of no right of action be maintained and that the

Philippines plaintiffs Jones Act, General Maritime Law, state

law, and foreign law claims be dismissed; alternatively, that

the above captioned and numbered mattr should be dis-

missed on the ground of forum non convaiens, all as more

fully set forth in the attached memorandun.

G-3

/s/ Robert B. Acomb, Jr.,

ROBERT B. ACOMB, JR., T.A. (#02304)

JAMES E. WRIGHT, III (#13700)

RICHARD D. BERTRAM (#17881)

Jones, Walker, Waechter,

Poitevent, Carrére & Denégre, L.L.P.

201 St. Charles Avenue, 48th Floor

New Orleans, Louisiana 70170-5100

(504) 582-8000

ATTORNEYS FOR DEFENDANT MIT-

SUBISHI HEAVY

INDUSTRIES, LTD.

CERTIFICATE OF SERVICE

I do hereby certify that I have on this 27 day of

November, 1996 served a copy of the foregoing pleading on

counsel for all parties to this proceeding by mailing the same

by United States mail, properly addressed, and first class

postage prepaid.

/s/_ Robert B. Acomb

G-4

CIVIL DISTRICT COURT FOR THE

PARISH OF ORLEANS

STATE OF LOUISIANA

NO. 94-16056 DIVISION “J”

ANGELINA CANTUBA, ET AL

VERSUS

THE AMERICAN BUREAU OF SHIPPING

AND MITSUBISHI HEAVY INDUSTRIES, LTD.

CONSOLIDATED WITH

NO. 95-19198 DIVISION “K”

MARILYN ALBA DEAN, ET AL

VERSUS

THE AMERICAN BUREAU OF SHIPPING, ET AL

FILED:

DEPUTY CLERK

MEMORANDUM IN SUPPORT OF EXCEPTIONS

OF MITSUBISHI HEAVY INDUSTRIES, LTD. OF NO

RIGHT OF ACTION AND TO

DISMISS THE PETITION ON THE GROUND OF

FORUM NON CONVENIENS |

G-5

The petition in the above captioned matter does not

allege or assert that the Dean claimants (hereinafter the

Philippines plaintiffs) have no remedy under foreign law.

The exceptions of the defendant suggest the existence of a

remedy for the Philippines plaintiffs under either Philippines

or Greek law. Olin v. Tidewater. Inc., 897 F.Supp 968, 971

(S.D.Tex. 1995).

The claims now asserted here on behalf of the

Philippines plaintiffs under the general maritime law or for-

eign law must be dismissed because these plaintiffs are

attempting to proceed in state court where the doctrine of

forum non conveniens mandates that the local court lacks

jurisdiction to proceed to trial.

Further, the Philippines plaintiffs have no claim under

Louisiana law. Jackson v. S.P. Leasing Corp., 774 S.W.2d

673 (Tex. App. Texarkana 1989); Lawrenson v. Global

Marine. Inc., 869 S.W.3d 519 (Tex. App. Texarkana 1993).

A state law claim or “other law” claim may not be afforded

to the Philippines plaintiffs where the jurisprudence specifi-

cally proscribed a different remedy. Miles v. Apex Marine

Corp., 498 U.S. 19, 111 S.Ct. 317, 112 L.Ed.2d 275 (1990) ;

Gillespie v. United States Steel Corp., 379 U.S. 148, 85 S.Ct.

308, 13 L.Ed.2d 199 (1964) ; Lindgren v. United States, 281

U.S. 38, 50 S.Ct. 207, 74 L.Ed. 686 (1930). See also, Antill

vy. Public Grain Elevator of New Orleans. Inc., 577 So.2d

1039 (La. App. 4th Cir. 1991).

Based upon the above and foregoing, it is evident that

the Philippines plaintiffs are within the class that should lit-

igate in another court and, accordingly, the defendants

exception of no right of action is the appropriate threshold

procedural device upon which to dismiss their claims here.

G-6

Significantly, United States courts dismissing on forum

non conveniens ground in favor of litigation in Greece have

consistently found that the law of Greece provides an ade-

quate alternative forum. In Joannides v. Marika Maritime

Corporation, 928 F.Supp. 374 (S.D.N.Y. 1996), the federal

court correctly ruled that dismissal on the ground of forum

non conveniens was proper for the claims of other plaintiffs

surviving from the same sinking. The court noted in its opin-

ion:

There is a final public interest consideration that bears

more than passing mention. This is a case brought on

behalf of Greek seamen who sipped aboard a Liberian

vessel crewed by a Greek company which, wherever

its ownership lay, was engaged exclusively in carry-

ing cargos to and from non-U.S. ports. There are fora

and remedies available to plaintiffs under the law of

their country of domicile. Three of them already have

settled their claims for sums which are substantial,

even if they perhaps might seem low by American

standards. There seems little justification for opening

the courts of the United States --which are paid for by

U.S. taxpayers and whose juries are composed of U.S.

citizens asked to drop their everyday activities to

serve - - to claims in these circumstances even if, as

plaintiffs stoutly argue, the ultimate base of opera-

tions of the vessel in question was the United States.

That no doubt is why judges of this Court repeatedly

have dismissed cases like this one — all brought by

the same attorney — in favor of Greek fora. E.G.,

Damigos, 716 F.Supp. 104; Tsangaris v. Elite Inc.,

No. 92 Civ. 7855(RPP), 1993 WL 267425 (S.D.N.Y.

Sener anA ROP URANO: EDR TO.

G-7

July 9, 1993); Geralis v. Westwind Africa Line. Ltd.,

No. 84 Civ. 4310(DNE) (S.D.N.¥. Apr. 19, 19891);

Hasakis_v. Trade Bulkers, Inc., 690 F.Supp. 260

(S.D.N.Y. 1988); Kassapas yv. Arkon Shipping

Agency, Inc., 578 F.Supp. 400 (S.D.N.Y. 1984);

Doufexis_v. Nagos S.S., Inc., 583 F.Supp. 1132

(S.D.N.Y. 1983); Krimizis v. Panoceanic Navigation

Corp., No. 83 Civ. 5667 (JFK), 1985 WL 3834

(S.D.N.Y. Nov. 14, 1985).

928 F.Supp. AT 380.

As Judge Bagneris recognized in his opinion in the

attached case of Coto v, J. Ray McDermott, Inc., CA 95-

16491 c/w 96-354, the foreign plaintiffs have no claim or

right of action under Louisiana law or foreign law for the

sinking of a foreign vessel in waters off the Coast of Mexico.

Boeing, 806 F.Supp. at 143; Tonkon v. Denny's Inc., Civ. A.

No. 860-1186, 1987 WL 8837, at *2 (E.D.Pa. March 31,

1987), aff'd, 835 F.2d 284 (3d Cir. 1987); Diaz vy. Mexicana

de Avion S.A., No. SA-86-CA-1065, 1987 WL 275695, at

**1-3 (W.D.Tex. Jan. 23, 1987), aff'd, 843 F.2d 498 (Sth

Cir.), cert, denied, 488 U.S. 826 (1988); see also, Olin vy.

Tidewater, Inc., 897 F.Supp. 968, 970-71 (S.D.Tex. 1995)

(Honduran seaman had remedies for his injuries in Mexico)

. In sum, the Philippines and/or Greece system provides

everything the Philippines plaintiffs need for a fair hearing

of their claims and a just adjudication of their nghts.

Louisiana has nothing to do with this dispute.

(8

(is! Robert B. Acom, Ie

ROBERT B. ACOMB, 2. TA. (O07 NO)

JAMES £. WRIGHT, Ii (#1 37am)

RICHARD D. BERTRAM (#17881)

homes, Waller Waex hner

Powevont, Carrére & Demtgre, LF

201 Se OChnarties Aver, 40% Fico

New Orton, | cuneneme "01% $100

(504) $8) 2

ATTORNEYS FOR DEFENDANT MrT

SUBISHI HEAVY

INDUSTRIES, LTD

| do hereby comfy Gat | hove ce Gee 27? Gee of

“covermiver | Pi served a cours of ther Someytonng piteediong om

cromgamaee | Gow all prartacs ao Ghar parce escedbonyg So empedbeng thee seernes

try Cemned Saamee cman prrcypeertty sddiveweeed ceed Giver « lhene

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H-2

MHI respectfully submits that the instant case has noth-

ing to do with Louisiana, and that the general maritime law,

the Jones Act and state law afford no relief to Plaintiffs in.

this Court;

Louisiana Code of Civil Procedure Article 123(C) is not

a bar to a dismissal for forum non conveniens dismissal

because the Jones Act and federal maritime law are inappli-

cable to this case;

The foreign law claims of the Plaintiffs should be dis-

missed on grounds that venue is improper and on grounds

that there is no right of action under CCP Art. 927(5) because

such causes of action are not available to the Philippine

Plaintiffs under the Jones Act, or general maritime law of the

United States;

The uncontested facts and allegations of the Petition

show that there are claims by Philippine citizens who are

non-resident aliens of the United States, whose decedents

were employees of a Greek corporation, for claims alleged-

ly resulting from the January 1, 1994 sinking of a Liberian

flagged vessel, the M/V MARIKA 7, on the high seas off the

coast of Canada and because the forum selected by the

Philippine Plaintiffs is not convenient to any party and there

exists an available, adequate, and more appropriate forum in

Greece and/or the Philippines where law claims applicable

to this controversy can be heard and resolved.

WHEREFORE, Defendant Mitsubishi Heavy Industries,

Ltd. prays that the foregoing exceptions be maintained and

that all Petitions filed herein on behalf of the Plaintiffs be

dismissed, with prejudice, as set forth more fully in the

attached memorandum.

H-3

Respectfully submitted,

/s/ Robert B. Acomb, Jr.

ROBERT B. ACOMB, JR., T.A. (#02304)

JAMES E> WRIGHT, III (#13700)

Jones, Walker, Waechter,

Poitevent, Carrére & Denégre, L.L.P.

201 St. Charles Avenue, 48th Floor

New Orleans, Louisiana 70170-5100

(504) 582-8000

ATTORNEYS FOR DEFENDANT,

MITSUBISHI HEAVY INDUSTRIES,

LTD.

CERTIFICATE OF SERVICE

I do hereby certify that I have on this 13th day of

January, 1997 served a copy of the foregoing pleading on

counsel for all parties to this proceeding by mailing the same

by United States mail, properly addressed, and first class

postage prepaid.

/s/ Robert B. Acomb, Jr.

I-]

APPENDIX I

t

CIVIL DISTRICT COURT FOR THE

PARISH OF ORLEANS

STATE OF LOUISIANA

NO. 94-16056 SECTION “13” DIVISION “J”

ANGELINA CANTUBA, ET AL

VERSUS

THE AMERICAN BUREAU OF SHIPPING

AND MITSUBISHI HEAVY INDUSTRIES, LTD.

FILED:

DEPUTY CLERK

~ JUDGMENT

This matter came on for hearing of exceptions filed by

defendant Mitsubishi Heavy Industries, Ltd. Present in court

were:

Charles B. Colvin, Esq.

RANDY J. UNGAR & ASSOCIATES, INC.

111 Rue Iberville Street - Suite 400

New Orleans, Louisiana 70130

Attorney for Plantiffs

Mr. Jim Wright, Esq.

201 St. Charles Avenue

New Orleans, LA 70170-5100

Attorney for Defendants

]-2

After considering the arguments of counsel, the mem-

oranda, and all other premises:

IT IS ORDERED, ADJUDGED AND DECREED that

the exceptions of improper service, improper venue, no

cause of action, and lack of personal jurisdiction are over-

ruled.

New Orleans, Louisiana, this ]st day of February, 1996.

/s/ George Connolly, Jr.

JUDGE, CIVIL DISTRICT COURT

Respectfully submitted,

RANDY J. UNGAR & ASSOCIATES, INC.

Randy J. Ungar # 12387

George W. Byrne, Jr. #3744

Charles B. Colvin #4352

111 Rue Iberville

Suite 400

New Orleans, Louisiana 70130

(504) 566-1616

J-]

APPENDIX J

CIVIL DISTRICT COURT FOR THE

PARISH OF ORLEANS

STATE OF LOUISIANA

NO. 94-16056 SECTION “13” DIVISION “J”

ANGELINA CANTUBA, ET AL

VERSUS

THE AMERICAN BUREAU OF SHIPPING

AND MITSUBISHI HEAVY INDUSTRIES, LTD.

FILED:

DEPUTY CLERK

JUDGMENT

This matter came on for hearing of exceptions of No

Cause or Right. of Action and Improper Venue, and of a

Motion to Dismiss for Forum Non Conveniens.

Present were:

Mr. Randy J. Ungar

Mr. Charles B. Colvin

RANDY J. UNGAR & ASSOCIATES,

365 Canal Street, Suite 2030

New Orleans, LA 70130

Attorneys for Plaintiffs

J-2

Mr. Robert B. Acomb, Jr.

Mr. James E. Wright, III.

Mr. Richard Bertram

201 St. Charles Avenue

New Orleans, LA 70170-5100

Attorneys for Mitsubishi Heavy Industries, Inc.

After hearing the arguments of counsel and considering

the pleadings and all other particulars,

IT IS ORDERED, ADJUDGED AND DECREED that

the exceptions of No Cause or Right of Action and Improper

Venue are overruled.

IT IS FURTHER ORDERED, ADJUDGED AND

DECREED that the Motion to Dismiss for Forum Non

Conveniens is denied.

New Orleans, Louisiana, this 25th day of Feb. 1997.

/s/ illegible

JUDGE, CIVIL DISTRICT COURT

K-1

APPENDIX K

CIVIL DISTRICT COURT FOR THE

PARISH OF ORLEANS

STATE OF LOUISIANA

NO. 94-16056 SECTION “13” DIVISION “J”

c/w95-19198

c/w96-21561

c/w97-70

ANGELINA CANTUBA, ET AL

i, VERSUS

THE AMERICAN BUREAU OF SHIPPING

AND MITSUBISHI HEAVY INDUSTRIES, LTD.

FILED:

DEPUTY CLERK

MEMORANDUM IN SUPPORT OF MOTION TO

DISMISS FOR FAILURE TO COMPLY WITH

COURT ORDER COMPELLING FULL ANSWERS

TO INTERROGATORIES AND REQUESTS

FOR PRODUCTION D E

MAY IT PLEASE THE COURT:

The vessel MARIKA sank in the North Atlantic on

January 1, 1994. These consolidated cases were filed in this

Court on behalf of the Greek officers and Philippine crew in

April 1994. :

ere

K-2

This is the fourth time over a 20-month period that the

issue of plaintiffs’ failure to properly respond to the inter-

rogatories and requests for production propounded by

Mitsubishi Heavy Industries, Ltd. (hereinafter “MHI’’) to

Plaintiffs in April and May 1997 has been brought to the

Court’s attention. After failing to comply with this Court’s

judgement entered on November 14, 1997 requiring the

plaintiffs to “serve complete responses to interrogatories and

requests for production of documents propounded by

Mitsubishi Heavy Industries,” MHI has been attempting to

obtain plaintiffs compliance with that order for over a year.

Once again the plaintiffs have failed to comply with this

Court’s order of September 3, 1998 wherein the Court grant-

ed MHI’s Motion to Compel and ordered each plaintiff to

fully answer the interrogatories and to produce the docu-

ments requested, as prayed for in the motion of MHI. In the

order, the Court further ordered that each plaintiff must iden-

tify the documents which are responsive to a particular inter-

rogatory answer and/or request for production. The Court

gave the plaintiffs 15 days from the date of the order or until

September 18 to comply with the order. No plaintiff has

complied with the Court’s order.

HISTORY

A history of MHI’s efforts to obtain proper discovery

answers from plaintiffs started in April 1997 when the dis-

covery requests were originally filed. The refusal of plain-

tiffs to answer illustrates the frustration of MHI in attempt-

ing to obtain information to which the law states it is enti-

tled. That history is as follows:

K-3

1.) Plaintiffs filed their first suit in April 1994 for an

accident which occurred on January 1, 1994.

2.) MHI propounded interrogatories and requests for |

production of documents to the numerous plaintiffs in the |

four consolidated cases by mailing same to plaintiffs’ coun-

sel as follows:

A. On April 3, 1997, MHI propounded interroga-

tories and requests for production of documents to all :

plaintiffs in the Cantuba case, Civil Action No. 94-

16056, Section 13, Division J, consolidated with

Dean, Civil Action No. 95-19198;

B. On May 5, 1997, MHI propounded interroga-

tories and requests for production of documents to all

plaintiffs in the Dean case, Civil Action No. 95-

19198, consolidated with Cantuba, Civil Action No.

94-16056, Section 13, Division J;

C. On May 22, 1997, MHI propounded interroga- ;

tories and requests for production of documents to all

plaintiffs in the Joannides case, Civil Action No. 96-

21561, Division 8-N, Docket No. 4; and

Ta MO Lata ha Sa A a i

D. On August 12, 1997, MHIi propounded inter-

rogatories and requests for production of documents

to all plaintiffs in the Silva case, Civil Action No. 97-

70, Section 16, Division M.

3.) At the May 27, 1997 status conference held

before the Honorable Louis M. DiRosa, there was a discus-

sion that the interrogatories and requests for production had

K-4

not yet been answered by plaintiffs. Counsel for plaintiffs

verbally stated at that time that all answers would be forth-

coming within 30 days from the date of that conference.

4.) Since nothing was received from the plaintiffs, on

September 26, 1997. counsel for MHI scheduled a Rule 9,

Section 4 conference for October 7, 1997, at 10:00 am. to

discuss the unanswered discovery with plaintiffs’ counsel.

5.) The conference of October 7 was rescheduled at

the request of plaintiffs’ counsel for October 17, 1997, at

9:00 am. However, no one from plaintiffs counsel’s office

appeared at the conference on October 17, 1997.

6.) On October 17, 1997, MHI filed its first motion to

compel responses to its interrogatories and requests for pro-

duction of documents. That motion was scheduled for hear-

ing on November 7, 1997 and was submitted to the Court

without argument.

7.) On November 14, 1997, Judge DiRosa issued a

judgment ordering the plaintiffs to serve complete responses

to MHI’s interrogatories and requests for production within

30 days of November 14, 1997. (See attached Exhibit 1.)

8.) On December 15, 1997, plaintiffs’ counsel deliv-

ered partial responses to MHI’s interrogatories and requests

for production of documents.

9.) After reviewing plaintiffs’ responses, counsel for

MHI forwarded correspondence on February 17, 1998 to

counsel for plaintiffs setting forth in detail the deficiencies

in plaintiffs’ answers to interrogatories and responses to

K-5

requests for production of documents as to each plaintiff in

the four consolidated cases. (See attached Exhibit 2.) In that

letter counsel for MHI called for a Rule 9, Section 4 confer-

ence to confer with plaintiffs’ counsel regarding the deficient

answers to interrogatories and responses to requests for pro-

duction.

10.) On March 4, 1998, a face-to-face conference

was held between counsel for MHI and plaintiffs at Mr.

Ungar’s office to discuss the deficient discovery responses

of plaintiffs. At that time, Mr. Ungar advised that he did not

handle the interrogatories but he relied on a Houston parale-

gal. Mr. Ungar thought they had funished MHI the informa-

tion in their possession and that other information requested

had not been received by them. He also advised that the

paralegal from their Houston law firm would be flown over

to New Orleans within a matter of a few days to complete the

answers and produce the documents. This agreement was

confirmed in the letter of MHI’s counsel dated March 12,

1998. (See attached Exhibit 3.)

11.) On March 6 and 10, 1998, plaintiffs’ counsel

produced additional documents which were a March 6, 1998

legal opinion by Paras, Raynes & Manlapaz setting forth

contentions of Philippine law with regard to the personal

representative of a decedent and copies of 22 classified ads

from a Filipino newspaper dated November 21, 1997.

12.) On Marchi 31, 1998 plaintiff's’ counsel forward-

ed a letter addressing only a small part of the deficiencies set

forth by MHI. The deficiencies which were addressed by

plaintiffs’ counsel related only to the reasons that several

plaintiffs did not provide answers to interrogatories. (See

attached Exhibit 4.)

Ee

K-6

13.) On April 16, 1998, counsel for MHI again wrote

to plaintiffs” counsel stating that responses had not been

received to MHI’s assertions of deficiencies in plaintiffs’

discovery responses. (See attached Exhibit 5.)

14.) On May 13, 1998, MHI filed a motion to compel

complete responses to interrogatories and requests for pro-

duction of documents. That motion was MHI’s second

motion relative to plaintiffs’ deficient discovery responses

and was scheduled for hearing for June 3, 1998.

15.) On June 2, 1998, the day before the hearing,

plaintiffs’ counsel contacted counsel for MHI Stating that

they were unable to be present at the hearing of the motions

because of an emergency and: needed an additional two

weeks in which to prepare. Counsel for MHI agreed for a

postponement of two weeks and MHI’s motion was reset

with the Court for June 19, 1998.

16.) On June 19, 1998, a hearing on MHI’s motion to

compel was heard before this Court. The Court requested

that counsel for all parties step outside to discuss possible

resolution of the motion. After conferring in the hallway, all

counsel advised the Court that there was an agreement to

have a face-to-face meeting within the next week to attempt

to resolve the discovery issues. (See attached Exhibit 6.) The

motions to compel were postponed to be reset for hearing if

necessary. This agreement was confirmed by letter dated

June 19, 1998. (See attached Exhibit 7.)

17.) On July 13 and 15, 1998, counsel for all parties

conferred at Mr. Ungar’s office to attempt to resolve the dis-

covery issues raised by MHI's motion. At the conferences,

K-7

several verbal agreements were made on the pending issues

and it was agreed that a letter agreement setting forth the

understandings would be helpful.

18.) On July 16, 1998, a draft agreement was pre-

pared and circulated, (See attached Exhibit 8)

19.) On July 17, 198, plaintiff's’ counsel proposed

one amendment to the draft agreement which change was

incorporated. Plaintiffs’ counsel was the only party to

request any changes. (See attached Exhibit 9.)

20.) After plaintiffs’ changes were incorporated into

the letter, Mr. Ungar refused to execute the agreement and

proposed additional changes which were different than the.

verbal agreements made at the July meeting and, therefore,

were unacceptable to MHI. (See attached Exhibit 10.)

21.) On August 28, 1998, MHI’s motion again came

on for hearing before this Court. After hearing the argument

of counsel, the Court granted MHI's motion to compel. After

the hearing, counsel for MHI forwarded the proposed order

which was being submitted to the Court to all counsel in this

case for comment. No objection was received from counsel

for plaintiffs.

22.) On September 3,1998, the Court signed the order

granting MHI's motion to compel ordering each plaintiff to

answer fully the interrogatories and produce the documents

requested as prayed for in MHI's motion. In addition, the

Court ordered that each plaintiff must identify the docu-

ments which were responsive to a particular interrogatory

answer and/or response to request for production. The order

K-8

gave the plaintiffs 15 days or until September 18, 1998 to

comply. (See attached Exhibit 11.)

23.) When no responses were received, counsel for

MHI wrote to plaintiffs’ counsel on October 1, 1998 advis-

ing plaintiffs’ counsel that more than 15 days had elapsed

since the date of the entry of the order and requested advice

on when plaintiffs would forward amended responses in

compliance with the order. (See attached Exhibit 12.)

24.) No response was received from plaintiffs’ coun-

sel until October 19, 1998 when plaintiffs’ counsel left a

voice mail message stating that plaintiffs’ counsel had not

seen the Judge’s order compelling discovery. As counsel for

MHI was out of town at that time, the secretary for MHI’s

counsel sent a letter to plaintiff’s counsel forwarding a copy

of the August 28 letter submitting the order to judge Ramsey

as well as a copy of the order signed by Judge Ramsey and

the letter of October 1. (See attached Exhibits 11, 12 & 13.)

Again no response was received from plaintiff’s counsel.

25.) In view of the continued lack of response from

Plaintiffs’ counsel, MHI sent a letter to plaintiffs, counsel on

November 10, 1998 scheduling a Rule 9, Section 4 discov-

ery conference for November 13, 1998 to discuss plaintiff’s

lack of compliance with the Court order issued on

September 3, 1998. (See attached Exhibit 14.)

_ 26.) On November 11, 1998, the Rule 9, Section 4

conference was held between counsel for MHI and plaintiffs’

counsel by telephone to discuss the plaintiffs’ failure to com-

ply with the Court order of September 3, 1998. Plaintiffs’

‘counsel stated that she had requested an extension of time

K-9

from counsel of MHI by leaving a phone message. However,

counsel of MHI advised that he received no such request for

an extension on his voice mail and would not have granted

one anyway in view of the fact that the order had been

entered over two months previously and had been complete-

ly ignored by plaintiffs. Counsel for plaintiffs requested an

extension until after Thanksgiving to provide responses.

Counsel for MHI advised that since MHI has been waiting

over one and one-half years. for proper responses, further

extensions could not be granted. -

27.) As Of the date of the filing of this motion on

December 17, 1998, more than two weeks after

Thanksgiving, plaintiffs have still failed to comply with the

Court order compelling answers to interrogatories and

responses to request for production. ...